New twist on government control of data: use of subpoenas

Justice officials have asked a court to make the ACLU return a classified document. Is too much kept secret?

When Anthony Romero finally read the document marked "secret" that the Justice Department was subpoenaing "any and all copies of," he scratched his head.

"It simply had nothing to do with national security. If anything, it might be mildly embarrassing to the government," he says.

And so Mr. Romero, executive director of the American Civil Liberties Union, decided to fight. That kicked off the latest battle in one key arena of the Bush administration's war on terror – the information front.

Both sides agree that nothing less than the nature of American society is at stake, although each side sees different threats. The administration says the danger comes from technically savvy terrorists who are out to exploit the nation's open society in order to undermine it. Critics contend that the real peril comes from the administration itself, which, they charge, is abusing the classification system to shield its activities from public scrutiny, thus undermining the workings of democracy.

This struggle between the needs to protect national security and civil liberties goes back to the Alien and Sedition Acts of 1798, which were passed to silence critics of the war with France. Such practices became more formalized in 1940, when the Roosevelt administration issued the first executive order creating a classification system. But since 9/11, the struggle has intensified.

"Democracy cannot give you a perfectly clear line between the balance of transparency and secrecy," says James Carafano, a senior fellow at the Heritage Foundation, a conservative think tank in Washington. "That will always create natural tensions, particularly at a time when we see we do have a lot of enemies."

Revised approach after 9/11

Since 9/11, the Bush administration has sought to keep secret any and all information that it believes could potentially be used by terrorists. In March 2003, it issued a broad executive order that extended the authority to classify information from agencies like the Department of Agriculture, Health and Human Services, and the Environmental Protection Agency. It's also extended the time information could be kept secret, from 10 years to 25 years. Moreover, it began a campaign to reclassify millions of documents from earlier administrations that had previously been declassified.

In 2005, more than 15 million additional documents were classified, a record amount, according to the Information Security Oversight Office of the National Archives. It cost the United States an estimated $7.7 billion to keep all the nation's information under wraps, according to the ISOO – an increase of more than 50 percent since 2001.

Critics say this is a significant overclassification of information. They say it's denied the public access to crucial policy debates about the fight against terrorism as well as the way the war in Iraq has been waged.

In addition, they contend, this administration has used the rubric of national security to cover up controversial activities – from the Abu Ghraib prison abuses to the National Security Agency's domestic wiretapping.

"[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."

How the government sees it

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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