New twist on government control of data: use of subpoenas

"[National security has] been abused to shield high-level political leadership on the torture issue. It's been used as a way to intimate the press [and] create a climate of fear and intimidation about government employees to dissuade whistle-blowers," says Romero of the ACLU.

Some academics also argue that large amounts of information that have nothing to do with national security have been reclassified – which has undermined their ability to do basic historical as well as scientific research.

"It's an unprecedented situation," says Larry Berman, a professor of political science at the University of California at Davis, who is suing the CIA for access to documents from the Johnson administration. "This current administration has set back freedom on information and access to knowledge for generations."

From the administration's point of view, however, the problem is not so much secrecy but the Internet and computer-savvy terrorists, who can use the free flow of information within the nation's open, democratic system to invent creative ways to attack it.

"This isn't the same world we lived in 10 years ago," says William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University in New York. "The dynamics of information have changed dramatically because of the Internet and the ease of data collection and transference."

To address that new technical reality, the administration has tried to prevent access to information that, if cobbled together properly, could give terrorists clues as to how the government functions. It's become known as the "mosaic theory" – that one piece of information on its own may seem harmless, but together with others, it can result in a larger picture that enemies could use. This has created a new paradigm that has allowed the administration to expand its definition of what should be kept secret.

"It basically says, 'Just trust us that even though this piece may seem innocuous, we know that if it's connected to other pieces of information that it can be dangerous,' " says Professor Banks.

That brings the issue back to the ACLU document, which the Justice Department has subpoenaed from the ACLU. Neither the Justice Department nor the US Attorney's Office would comment on it. The ACLU will not reveal its contents either, awaiting the outcome of its effort to quash the subpoena. But Romero says the document is a "classic example of overclassification." He also says the US Attorney's Office is abusing the grand-jury system, which is set up as an investigative body.

"The government's attempt to suppress information using the grand-jury process is truly chilling and is unprecedented," said Romero in a statement. "This subpoena serves no legitimate investigative purpose."

Mr. Carafano of the Heritage Foundation says that overclassification is a problem in every administration, and he does not believe the current one has particularly abused the process.

"Is overclassification a problem? Absolutely," he says. "Are there people who try to cover up their mistakes using it? Absolutely. Is there's going to be a constant tension around this issue? Absolutely. But if somebody thinks that if they vote the bums out of office this will change, they're wrong."

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