Archive for the ‘Freedom of Information Act’ Category

December 6, 2007

GREAT THANKS TO THE ORIGINAL AUTHOR WHO COMPILED THIS INFORMATIVE LIST…WHICH REALLY ONLY HITS THE HIGH POINTS…THE TRUE SCOPE OF WHAT LIBERTIES WE’VE BEEN SILENTLY ROBBED OF WILL PROBABLY NEVER BE KNOWN.

-JEREMIAS X

2001

January

Presidential directive delays indefinitely the scheduled release of presidential documents (authorized by the Presidential Records Act of 1978) pertaining to the Reagan-Bush administration. Link

Bush and Cheney begin process of radically broadening scope of documents and information which can be deemed classified. Link

February

The National Security Agency (NSA) sets up Project Groundbreaker, a domestic call monitoring program infrastructure. Link

Spring

Bush administration order authorizes NSA monitoring of domestic phone and internet traffic. Link

May

US Supreme Court rules that medical necessity is not a permissible defense against federal marijuana statutes. Link

September

In immediate aftermath of 9-11 terror attacks, Department of Justice authorizes detention without charge for any terror suspects. Over one thousand suspects are brought into detention over the next several months. Link (pdf)

October

Attorney General John Ashcroft announces change in Department of Justice (DOJ) policy. According to the new policy DOJ will impose far more stringent criteria for the granting of Freedom of Information Act requests. Link

September-October

NSA launches massive new database of information on US phone calls. Link

October

The USA Patriot Act becomes law. Among other things the law: makes it a crime for anyone to contribute money or material support for any group on the State Department’s Terror Watch List, allows the FBI to monitor and tape conversations between attorneys and clients, allows the FBI to order librarians to turn over information about patron’s reading habits, allows the government to conduct surveillance on internet and email use of US citizens without notice. The act also calls for expanded use of National Security Letters (NSLs), which allow the FBI to search telephone, email and financial records of US citizens without a court order, exempts the government from needing to reveal how evidence against suspected terrorists was obtained and authorizes indefinite detention of immigrants at the discretion of law enforcement and immigration authorities.

NJ Superior court judge and civil liberties scholar Anthony Napolitano, author of A Nation of Sheep, has described the law’s assault on first and fourth amendment principles as follows, “The Patriot Act’s two most principle constitutional errors are an assault on the Fourth Amendment, and on the First. It permits federal agents to write their own search warrants [under the name “national security letters”] with no judge having examined evidence and agreed that it’s likely that the person or thing the government wants to search will reveal evidence of a crime… Not only that, but the Patriot Act makes it a felony for the recipient of a self-written search warrant to reveal it to anyone. The Patriot Act allows [agents] to serve self-written search warrants on financial institutions, and the Intelligence Authorization Act of 2004 in Orwellian language defines that to include in addition to banks, also delis, bodegas, restaurants, hotels, doctors’ offices, lawyers’ offices, telecoms, HMOs, hospitals, casinos, jewelry dealers, automobile dealers, boat dealers, and that great financial institution to which we all would repose our fortunes, the post office. Link 1 | Link 2

November

Executive order limits release of presidential documents. The order gives incumbent presidents the right to veto requests to open any past presidential records and supercedes the congressionally passed law of 1978 mandating release of all presidential records not explicitly deemed classified. Link

2002

Winter

FBI and Department of Defense (DOD), forbidden by law from compiling databases on US citizens, begin contracting with private database firm ChoicePoint to collect, store, search and maintain data. Link

Spring

Secret executive order issued authorizing NSA to wiretap the phones and read emails of US citizens. Link

Spring

Transportation Security Adminstration (TSA) acknowledges it has created both a “No Fly” and a separate “Watch” list of US travelers. Link

May

Department of Justice authorizes the FBI to monitor political and religious groups. The new rules permit the FBI to broadly search or monitor the internet for evidence of criminal activity without having any tips or leads that a specific criminal act has been committed. Link

June

Supreme Court upholds the right of school administrators to conduct mandatory drug testing of students without probable cause. Link

November

Homeland Security Act of 2002 establishes separate Department of Homeland Security. Among other things the department will federally coordinate for the first time all local and state law enforcement nationwide and run a Directorate of Information and Analysis with authority to compile comprehensive data on US citizens using public and commercial records including credit card, phone, bank, and travel. The department also will be exempt form Freedom of Information Act disclosure requirements. The Homeland Security department’s jurisdiction has been widely criticized for being nebulously defined and has extended beyond terrorism into areas including immigration, pornography and drug enforcement. Link 1 | Link 2

2003

February

Draft of Domestic Security Enhancement Act (aka Patriot Act 2), a secret document prepared by the Department of Justice is leaked by the Center for Public Integrity. Provisions of the February 7th draft version included:

Removal of court-ordered prohibitions against police agencies spying on domestic groups.

The FBI would be granted powers to conduct searches and surveillance based on intelligence gathered in foreign countries without first obtaining a court order.

Creation of a DNA database of suspected terrorists.

Prohibition of any public disclosure of the names of alleged terrorists including those who have been arrested.

Exemptions from civil liability for people and businesses who voluntarily turn private information over to the government.

Criminalization of the use of encryption to conceal incriminating communications.

Automatic denial of bail for persons accused of terrorism-related crimes, reversing the ordinary common law burden of proof principle. All alleged terrorists would be required to demonstrate why they should be released on bail rather than the government being required to demonstrate why they should be held.

Expansion of the list of crimes eligible for the death penalty.

The United States Environmental Protection Agency would be prevented from releasing “worst case scenario” information to the public about chemical plants.

United States citizens whom the government finds to be either members of, or providing material support to, terrorist groups could have their US citizenship revoked and be deported to foreign countries.

Although the bill itself has never (yet) been advanced in congress due to public exposure, some of its provisions have become law as parts of other bills. For example The Intelligence Authorization Act for Fiscal Year 2004 grants the FBI unprecedented power to obtain records from financial institutions without requiring permission from a judge. Under the law, the FBI does not need to seek a court order to access such records, nor does it need to prove just cause. Link 1 | Link 2

March

Executive order issued which radically tightens the declassification process of classified government documents, as well as making it far easier for government agencies to make and keep information classified. The order delayed by three years the release of declassified government documents dating from 1978 or earlier. It also allowed the government to treat all material sent to American officials from foreign governments — no matter how routine — as subject to classification, and expanded the ability of Central Intelligence Agency (CIA) to shield documents from declassification. Finally it gave the vice president the power to classify information. Link 1 | Link 2

March

In a ruling seen as a victory for the concentration of ownership of intellectual property and an erosion of the public domain, the Supreme Court in Eldred v. Ashcroft held that a 20-year extension of the copyright period (from 50 years after the death of the author to 70 years) called for by the Sonny Bono copyright Extension not violate either the Copyright Clause or the First Amendment. Link

April

In Demore v. Kim, the Supreme Court ruled that even permanent residents could be subject to mandatory detention when facing deportation based on a prior criminal conviction, without any right to an individualized hearing to determine whether they were dangerous or a flight risk. Link

Fall

The FBI changes its traditional policy of destroying all data and documents collected on innocent citizens in the course of criminal investigations. This information would, according to the bureau, now be permanently stored. Two years later in late 2005 Executive Order 13388, expanded access to those files for “state, local and tribal” governments and for “appropriate private sector entities,” which are not defined. Link 1 | Link 2

Fall

As authorized by the Patriot Act, the FBI expands the practice of national security letters. NSLs, originally introduced in the 1970s for espionage and terrorism investigations, enabled the FBI to review in secret the customer records of suspected foreign agents. This was extended by the Patriot Act to include permitting clandestine scrutiny of all U.S. residents and visitors whether suspected of terrorism or not. Link

2004

January

The FBI begins keeping a database of US citizens based on information obtained via NSLs. Link

Spring

John Ashcroft invokes State Secrets privilege to forbid former FBI translator Sibel Edmunds from testifying in a case brought by families of victims of the 9-11 attacks. Litigation by 9-11 families is subsequently halted. Link 1 | Link 2

June

Supreme Court upholds Nevada state law allowing police to arrest suspects who refuse to provide identification based on police discretion of “reasonable suspicion.” Link

2005

January

Supreme court rules that police do not need to have probable cause to have drug sniffing dogs examine cars stopped for routine traffic violations. Link 1 | Link 2

June

Supreme Court rules that the federal government can prosecute medical marijuana users even in states which have laws permitting medical marijuana. Link

Summer

The Patriot Act, due to expire at the end of 2005, is reauthorized by Congress. Link

Winter 2005

Senate blocks reauthorization of certain clauses in Patriot Act. Link

2006

March

Senate passes amended version of Patriot Act, reauthorization, with three basic changes from the original including: recipients of secret court orders to turn over sensitive information on individuals linked to terrorism investigations are not allowed to disclose those orders but can challenge the gag order after a year, libraries would not be required to turn over information without the approval of a judge, recipients of an FBI “national security letter” — an investigator’s demand for access to personal or business information — would not have to tell the FBI if they consult a lawyer. New bill also said to extend Congressional oversight over executive department usage guidelines. Shortly after bill is signed George Bush declares oversight rules are not binding. Link 1 | Link 2

June

Supreme court rules that evidence obtained in violation of the “knock and announce” rules can still be permitted in court. Link

September

US Congress and Senate approve the Military Commissions Act, which authorizes torture and strips non- US citizen detainees suspected of terrorist ties of the right of habeas corpus (which includes formal charges, counsel and hearings). It also empowers US presidents at their discretion to declare US citizens as enemy combatants and subject to detention without charge or due process. Link 1 | Link 2 | Link 3

October

John Warner Defense Authorization Act is passed. The act allows a president to declare a public emergency and station US military troops anywhere in America as well as take control of state based national guard units without consent of the governor or other local authorities. The law authorizes presidential deployment of US troops to round-up and detain “potential terrorists”, “illegal aliens” and “disorderly” citizenry. Link 1 | Link 2

2007

May

National Security Presidential Directive 51 (NSPD-51) establishes a new post-disaster plan (with disaster defined as any incident, natural or man-made, resulting in extraordinary mass casualties, damage or disruption) which places the president in charge of all three branches of government. The directive overrides the National Emergencies Act which gives Congress power to determine the duration of a national emergency. Link 1 | Link 2

June

In “Bong Hits for Jesus” case Supreme court rules that student free speech rights do not extend to promotion of drug use. Link

July

Executive Order 13438: “Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq, issued. The order asserts the government’s power to confiscate the property “of persons determined to have committed, or to pose a significant risk of committing, an act or acts of violence that have the purpose or effect of threatening the peace or stability of Iraq or the Government of Iraq or undermining efforts to promote economic reconstruction and political reform in Iraq or to provide humanitarian assistance to the Iraqi people.”

October

The Violent Radicalization and Homegrown Terrorism Act passes the House of Representatives 400 to 6 (to be voted on in the Senate in 2008). The act proposes the establishment of a commission composed of members of the House and Senate, Homeland Security and others, to “examine and report upon the facts and causes of violent radicalization, homegrown terrorism, and ideologically based violence in the United States” and specifically the role of the internet in fostering and disseminating extremism. According to the bill the term ..violent radicalization’ means the process of adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change, while the term ‘ideologically-based violence’ means the use, planned use, or threatened use of force or violence by a group or individual to promote the group or individual’s political, religious, or social beliefs.” Link 1 | Link 2 | Link 3

Advertisements

Soft Crimes Against Democracy

September 11, 2007

Soft Crimes Against Democracy
What ever happened to freedom of information? Ruth Rosen
September 07 , 2007

Disgraceful, shameful, illegal, and yes, dangerous. These are words that come to mind every time the Bush administration makes yet another attempt to consolidate executive power, while wrapping itself in secrecy and deception.

And its officials never stop. In May, Citizens for Responsibility and Ethics in Washington, a nonprofit group, filed a lawsuit seeking information from the White House Office of Administration about an estimated five million e-mail messages that mysteriously vanished from White House computer servers between March 2003 and October 2005. Congress wants to investigate whether these messages contain evidence about the firing of nine United States attorneys who may have refused to use their positions to help Republican candidates or harm Democratic ones.

The administration’s first response to yet another scandal was to scrub the Freedom of Information Act (FOIA) request section from the White House Office website. One day it was there; the next day it had disappeared. Then, Bush-appointed lawyers from the Justice Department tried to convince a federal judge that the White House Office of Administration was not subject to scrutiny by the Freedom of Information Act because it wasn’t an “agency.” The newly labeled non-agency, in fact, had its own FOIA officer and had responded to 65 FOIA requests during the previous 12 months. Its own website had listed it as subject to FOIA requests.

For those who may have forgotten, Congress passed the Freedom of Information Act in 1966 to hold government officials and agencies accountable to public scrutiny. It became our national sunshine law and has allowed us to know something of what our elected officials actually do, rather than what they say they do. Congress expressly excluded classified information from FOIA requests in order to protect national security.

Scorning accountability, the Bush administration quickly figured out how to circumvent the Act. On October 12, 2001, just one month after the 9/11 attacks, Attorney General John Ashcroft took advantage of a traumatized nation to ensure that responses to FOIA requests would be glacially slowed down, if the requests were not simply rejected outright.

Most Americans were unaware of what happened — and probably still are. If so, I’d like to remind you how quickly democratic transparency vanished after 9/11 and why this most recent contorted rejection of our premier sunshine law is more than a passing matter; why it is, in fact, an essential aspect of this administration’s continuing violation of our civil rights and liberties, the checks and balances of our system of government, and, yes, even our Constitution.

On Bended Knee

Lies and deception intended to expand executive power weren’t hard to spot after 9/11, yet they tended to slip beneath the political and media radar screens; nor did you have to be an insider with special access to government officials or classified documents to know what was going on. At the time, I was an editorial writer and columnist for the San Francisco Chronicle. From my little cubicle at the paper, I read a memorandum sent by Attorney General John Ashcroft to all federal agencies. Short and to the point, it basically gave them permission to resist FOIA requests and assured them that the Justice Department would back up their refusals. “When you carefully consider FOIA requests,” Ashcroft wrote, “and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decision unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.”

He then went on to explain, “Any discretionary decision by your agency to disclose information protected under FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.”

And what, I wondered, did such constraints and lack of accountability have to do with finding and prosecuting terrorists? Why the new restrictions? Angered, I wrote an editorial for the Chronicle about the Justice Department’s across-the-board attempt to censor freedom of information. (“All of us want to protect our nation from further acts of terrorism. But we must never allow the public’s right to know, enshrined in the Freedom of Information Act, to be suppressed for the sake of official convenience.”)

Naively and impatiently, I waited for other newspapers to react to such a flagrant attempt to make the administration unaccountable to the public. Not much happened. A handful of media outlets noted Ashcroft’s memorandum, but where, I wondered, were the major national newspapers? The answer was: on bended knee, working as stenographers, instead of asking the tough questions. Ashcroft had correctly assessed the historical moment. With the administration launching its Global War on Terror, and the country still reeling from the September 11th attacks, he was able to order agencies to start building a wall of secrecy around the government.

In the wake of 9/11, both pundits and the press seemed to forget that, ever since 1966, the Freedom of Information Act had helped expose all kinds of official acts of skullduggery, many of which violated our laws. They also seemed to forget that all classified documents were already protected from FOIA requests and unavailable to the public. In other words, most agencies had no reason to reject public FOIA requests.

A few people, however, were paying attention. In February 2002, Chairman of the Judiciary Committee Senator Patrick Leahy (D-VT) asked the General Accounting Office (GAO) to evaluate the “implementation of the FOIA.” Ashcroft’s new rules had reversed former Attorney General Janet Reno’s policy, in effect since 1993. “The prior policy,” Leahy reminded the GAO, “favored openness in government operation and encouraged a presumption of disclosure of agency records in response to FOIA requests unless the agency reasonably foresaw that disclosure would be harmful to an interest protected by a specific exemption.”

And what was the impact of Ashcroft’s little-noticed memorandum? Just what you’d expect from a presidency built on secrecy and deception — given a media then largely ignoring both. The Attorney General’s new policy was a success. On August 8, 2007, the Coalition of Journalists for Open Government issued “Still Waiting After All These Years,” a damning report that documented the Ashcroft memorandum’s impact on FOIA responses. Their analysis revealed that “the number of FOIA requests processed has fallen 20%, the number of FOIA personnel is down 10%, the backlog has tripled and the cost of handling a request is up 79%.” During the same years, the Bush administration embarked on a major effort to label ever more government documents classified. They even worked at reclassifying documents that had long before been made public, ensuring that ever less information would be available through FOIA requests. And what material they did send out was often so heavily redacted as to be meaningless.

“Soft Crimes” Enable Violent Ones

Six years after Ashcroft instituted his policy, some of our legislators have finally begun to address what he accomplished in 2001. In April, 2007, the House of Representatives passed legislation to strengthen and expedite the Freedom of Information Act. On August 3, Senators Pat Leahy, once again chairman of the Judiciary Committee, and John Cornyn (R-TX) successfully shepherded the Open Government Act into law, despite strong opposition from administration outrider Sen. Jon Kyl (R-AZ), who had earlier placed a hold on the bill. Like the House bill, the legislation attempted to make it easier to gain access to government documents.

Will it make a difference? Probably not. The Coalition of Journalists for Open Government views the legislation as too weak and compromised to be effective against such an administration. Steven Aftergood, Director of the Project on Government Secrecy for the Federation of American Scientists notes that the administration might well succeed in claiming that the White House Office of Administration is not an “agency.” “It’s obnoxious, and it’s a gesture of defiance against the norms of open government,” Aftergood told the Washington Post. “But it turns out that a White House body can be an agency one day and cease to be the next day, as absurd as it may seem.”

It’s not only absurd; it’s dangerous. This is an administration that believes it has complete authority to ignore the law every time it mentions the supposedly inherent powers of a commander-in-chief presidency or wields the words “executive privilege.” Its non-agency claim is but one more example of its arrogant defiance of laws passed by Congress.

Ashcroft’s quashing of the FOIA, following on the heels of the Patriot Act, was just the beginning of a long series of efforts to expand executive power. In the name of fighting “the war on terror” and “national security,” for instance, Bush issued an executive order on November 1, 2001 that sealed presidential records indefinitely, a clear violation of the 1978 Presidential Records Act in which Congress had ensured the public’s right to view presidential records 12 years after a president leaves office.

And what did this have to do with preventing a potential terrorist attack? Absolutely nothing, of course. It just so happened that 12 years had passed since Ronald Reagan left the Oval Office. Many people believed, as I did, that locking down Reagan’s papers was an effort to stop journalists and historians from reading documents that might have implicated Papa Bush (then Reagan’s vice president) and others — who, by then, were staffing the younger Bush’s administration — as active participants in the Iran-Contra scandal.

When the White House claimed that its administrative office was not subject to the FOIA, an August 24th editorial in the New York Times — now more alert to Bush’s disregard for the rule of law — asked, “What exactly does the administration want to hide?” It rightly argued that the “administration’s refusal to comply with open-government laws is ultimately more important than any single scandal. The Freedom of Information Act and other right-to-know laws were passed because government transparency is vital to a democracy.”

How true. It’s taken a long time for our paper of record to realize that “soft” crimes are actually hard assaults against our democracy. The restrictions on FOIA and an executive order to seal presidential records may seem tame when compared to the crimes committed at Abu Ghraib, Haditha, and Guantanamo, not to mention warrantless surveillance, the extraordinary rendition of kidnapped terror suspects to the prisons of regimes that torture, and the imprisonment of so-called enemy combatants.

But don’t be lulled into thinking that the act of censoring information, of shielding the American people from knowledge of the most basic workings of their own government, is any less dangerous to democracy than war crimes or acts of torture. In fact, it was the soft crimes of secrecy and deception that enabled the Bush administration’s successful campaign to lure our country into war in Iraq — and so to commit war crimes and acts of torture.

You don’t have to be a historian to know that “soft” crimes are what make hard crimes possible. They can also lead to an executive dictatorship and the elimination of our most cherished civil rights and liberties.

Historian and journalist Ruth Rosen, a former columnist for the Los Angeles Times and the San Francisco Chronicle, teaches history and public policy at the University of California, Berkeley, and is a senior fellow at the Longview Institute. A newly updated edition of her book, The World Split Open: How the Modern Women’s Movement Changed America was published in January 2007.

EmailE-mail article

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

This article has been made possible by the Foundation for National Progress, the Investigative Fund of Mother Jones, and gifts from generous readers like you.

© 2007 The Foundation for National Progress