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.

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