Historians in Handcuffs
For more than thirty years, the FBI and I have been playing a weird, one-sided game of hide and seek. I seek historical records, they hide them--and the American public winds up the loser.
My quest has to do with the Hiss case, one of the most important trials of the twentieth century. Alger Hiss was indicted for perjury sixty years ago this month; the cold war he was indelibly identified with has been over for almost two decades. Yet I'm still being stonewalled in my requests. (Hiss's federal indictment related to charges that he had committed espionage for the Soviet Union in the 1930s; he was convicted in 1950 and imprisoned for forty-four months. He died in 1996, proclaiming his innocence to the end.)
My involvement began in the mid-1970s, after Hiss and a journalist named William A. Reuben had filed a Freedom of Information Act (FOIA) request for documents related to the case. Soon after the first government documents began arriving, I was hired to sort through the papers and make sense of them. The problem was that while the bureau eventually released nearly 50,000 pages on the case, many were severely censored with black marker, while countless others were withheld in their entirety. The result was that our attempts at understanding what the FBI did or didn't do to help secure Hiss's conviction were severely undermined.
Our efforts continued through the 1980s and early 1990s. Then, in 1993, President Clinton directed all government agencies to comply with the spirit of the FOIA, declaring that "openness in government is essential to accountability and the Act has become an integral part of that process."
Encouraged, we filed a new suit to have the FBI release Hiss's entire file intact and without deletions. After years of delay, the first batches of unredacted documents began to trickle in, and for the first time a clear picture began to emerge of what the bureau was up to in the 1940s. The spigot was soon closed, however, with the onset of the Bush administration. Although I continue to receive documents (and the FBI has now said that the number of Hiss-related documents in its files approximates 500,000), those released over the past couple of years have contained more deletions than those that were made available in the 1970s. Most appear to be completely arbitrary. A name withheld on the first page of a document citing a privacy exception will be revealed on the second. Documents released whole in the 1970s are now mostly redacted.
I am far from the only researcher coping with the FBI's intransigence. A 2002 memo to government agencies by then-Attorney General John Ashcroft, countermanded the Clinton policy, urging federal agencies to look for legal arguments to reject every FOIA request they received. It was an effective tactic: In the five years prior to the memo, federal agencies granted 51 percent of FOIA requests; last year that number had plunged to 36 percent.
One doesn't have believe in Hiss's innocence to understand the importance of the people's right to know to our democracy. This goes far beyond the issues in involved in the Hiss case. This is about history, and our ability to preserve and understand ours.
Some people are fighting back. An informal group of lawyers specializing in FOIA matters calling itself FOIL (Freedom of Information Lawyers) has proposed a Historic Records Act. The idea behind it is that records of historical importance such as those we and other researchers are seeking need to be released with protections that go beyond the FOIA.
"Essentially, what needs to be done is to get away from the FOIA's concept of 'exemptions' from disclosure and endorse the overriding presumption that disclosure is in the public interest with respect to all categories and classes of records, subject only to limited postponements for extremely sensitive records, so that all information ultimately becomes public," says one FOIL attorney, James Lesar, who has spent four decades investigating the assassination of President Kennedy. "All information means all."
Additionally, more than sixty non-profit groups--including progressives, libertarians, and conservatives--have proposed that the incoming Attorney General issue during his first days in office a new "A.G.'s memo" that by overturning the Ashcroft memo "reinstitutes the presumption of openness under FOIA."
The Senate Judiciary Committee will soon be holding hearings into President Obama's nomination for Attorney General Eric Holder. It would be encouraging if instead of concentrating on whether Holder did or didn't approve President Clinton's pardon for Marc Rich, members of the Judiciary Committee asked him about the more important issue of where he stands on issuing such a memo and on the general question of openness and accountability and the people's right to know.
President Obama ran on a campaign of promising not only change but also transparency. In terms of the FOIA and redacted documents that fill my mailbox, it would be nice if he meant that literally.