The federal government’s recent efforts to restrict civil liberties in deference to national security concerns, such as the passage of the “USA Patriot Act of 2001,” which gives the Central Intelligence Agency new leeway to conduct domestic surveillance, has received the lion’s share of attention from groups like the American Civil Liberties Union. But a memorandum issued last month by U.S. Attorney General John Ashcroft on federal agencies’ compliance with the Freedom of Information Act (FOIA) has become equally contentious, and several government watchdog groups accuse Ashcroft and the Bush administration of using the terrorist attacks as a means to an end they have sought all along: to clamp down on the amount of federal information available to the public.
FOIA was passed in 1966 to give citizens access to the policies and procedures under which government agencies operate. Under the terms of the act, a FOIA request received by a federal agency must be considered by agency personnel, followed by the release of the requested information, subject to national security concerns. A new administration typically issues a memorandum regarding its stance on FOIA, and Ashcroft’s memorandum supersedes that of former Attorney General Janet Reno. Reno’s 1993 memorandum encouraged government agencies to lean towards disclosure when considering FOIA requests, advocating withholding information only when “foreseeable harm” could result from the disclosure. Ashcroft’s memorandum changes the standard of FOIA denials, stating that agencies should withhold information any time there is a “sound legal basis” to do so.
“There’s a real push going on to restrict information of all kinds on the part of the federal government, and this is one element of that,” says Jim Naureckas of the Washington, DC-based media watchdog group, Fairness and Accuracy in Reporting. “The administration has basically instructed federal agencies to err on the side of secrecy, which in our minds is antithetical to a government by, of, and for the people.”
Naureckas believes that the war on terrorism has been used “to a certain extent” as a hammer in instituting the new policy, a sentiment echoed by Steven Aftergood, director of the Project on Government Secrecy for the Beltway watchdog group, Federation of American Scientists. “I think the war on terrorism is at best a pretext for this action,” says Aftergood. “It’s a question of legal philosophy. If the Reno standard were applied, it would protect national security as much as the new standard, and that’s the only issue of relevance to the war.”
As for legal recourse available to those who oppose the new standard, Aftergood doesn’t see much hope. “It’s a hard battle to win,” he says, “because the courts typically side with the executive branch in FOIA lawsuits.”