Proposal.
Introduction.
Following Churchill's dictum that truth is the first casualty of war,
some have observed that freedom of information (FOI) was the first casualty
of the war on terrorism. This paper will explore various policy changes
that impacted official information, privacy, surveillance, searches and
seizures, and related matters during the first George W. Bush administration
of 2001-2004. (To avoid confusion with his father's presidency, we
shall refer to the son as W. Bush or Bush (43)). We shall attempt
to separate those policy changes which are normal when a republican administation
replaces a democratic one, from those brought about in national security
eras. To accomplish this, we need to explore the policy history of
open government, and establish the tensions during policy cycles between
eras of national security dominance and eras of open govenment.
That the two can be in tension is evidenced by the major exemptions to the US Freedom of Information Act (FOIA, at 5 USC 552): section (b)(1) exempts properly classified national security records, while section (b)(7) exempts law enforcement records under several conditions. Both these exemptions were specifically tightened during Senate action on the 1974 amendments to the FOIA, against the wishes of the Nixon and administration and subsequently over president Ford's veto.
National Security versus Open Government and Privacy Issues: Half a Century of Policy Cycles or Tides.
There is probably little need here to rehearse the conceptual materials of policy analysis. Suffice it to say there range from formal process models (comprehensive rationality or Simon's bounded rationality versus Lindblom's incrementalism) via MacMahon's (1955) swing of the pendulum, Schlesinger's historical cycles and Cobb & Elder's agenda setting -- to Kingdon's informal (1992) streams, windows and garbage cans. The striking characteristic of policy in this area has been the cyclical ebb and flow between national security secrecy and claims to open govenment. In some sense, this reflects a classic tension faced in new states or regimes, between order and freedom. However those US presidents who have most often called for freedom or liberty (Reagan and W. Bush) have also been among the most national security minded.
Put in terms of party administrations, national security has been more dominant in the postwar republican presidencies of Eisenhower, Nixon, Reagan and both Bushs (more so G.W. Bush, the younger.) Open government has been more a motif of the democratic administrations of Kennedy, (not so much Johnson), Carter, and Clinton.
Looked at from the perspectives of wartime versus peacetime presidencies, the picture becomes more refined. Truman (during conflicts over Korea and Communism), like Johnson (Vietnam), a de facto wartime president, signed the National Security Act 1947, the intelligence charter. In terms of the inner circle discussion among senior staff (Hess), the first-term democrats have tended to use the spokes of a wheel model of open discussion -- while republican presidencies tend in both terms to utilize a more closed cirle of advisers guarded by a troika (Nixon, Reagan's first term) or chief of staff (Eisenhower, Reagan's second term, both Bushes).
Since the early 1950s, there has been a tension in US policymaking between demands for public records and the needs of national security. This tension has produced "dilemmas of democracy" (Rourke, 1961). The tide of secrecy and publicity has ebbed and flowed in US government, leaving distinct policy cycles each decade. The 1950s were clearly a decade of national security during the Eisenhower administration, though the press and the Moss congressional subcommittee did complain vigorously about secrecy, highlighting and ridiculing examples. The Loyd Wright commission did investigate the security classification system, though little resulted. A merely symbolic FOI bill was enacted to declare that nothing in Section Three of the Administrative Procedures Act 1946 could be used to withhold information.
That statute, the centerpiece of postwar administrative law, would be modified by the US Freedom of Information Act (FOIA, 5 USC 552) in 1966 to establish the principle of public records. It was then strengthened in 1974 (particularly to open records of the intelligence and law enforcement agencies), weakened specifically to relieve the Central Intelligence Agency (CIA) in 1984, weakened specifically to relieve law enforcement agencies in 1986, and strengthened in application to electronic records in 1996. We can therefore see symbolic dominance of national security over freedom of information in the decades of the 1950s and 1980s; and dominance of public records in the 1960s, 1970s, and perhaps the 1990s.
Each of these tides of policymaking responds to a moon pulling in a new direction of political scandal or debate.
The onset of the cold war and the creation of the national security charter by statute in 1947, evoked calls from journalists and academics in 1948 for freedom of information. The press were partly inspired by the Swedish Freedom of the Press Act of 1948 which incorporated FOI into the Swedish constitution. They were no doubt stimulated in part by the climate of McCarthyism with its publicized Senate hearings into alleged security violations in the State Department and Defense Department.
The agitation for the 1966 FOIA coincides with the Johnson administration's "credibility gap" over the progress of the Vietnam war. Calls for the FOIA were bipartisan, the house democrats' committee staff being connected with the press, and republicans being led by a young representative from Illinois, Donald Rumsfeld.
The demands to strengthen the FOIA in 1974 came not only from the press, academics but also from liberal democrats in the Senate: Edward Kennedy (MA), Phil Hart (CA) and Ed Muskie (ME). Their efforts achieved a bipartisan coalition in response to the national security overstretch by the Nixon administration following the Watergate scandal of 1972-74. The administration claimed that the Watergate burglars were engaged in national security intelligence operations, and claimed that executive privilege (Berger, 1974; Rozell, 1994), a constitutional doctrine espoused by many presidents since the early republic, and formalized by Eisenhower in a letter rebuffing the McCarthy investigations of April 1954, should apply seemingly to the entire executive branch. The Senate imposed several strengthening amendments including time limits for responding to request for documents, plus specific rules to require the law enforcement and intelligence communities to search their files.
Following the near-impeachment and resignation of president Nixon in August 1974, president Ford issued several vetoes of liberal legislation, culminating in a veto of the FOIA amendments. He also pardoned Nixon, against tradition, for any crimes he might have committed. In a strong rebuff, and amid tensions with the Federal Bureau of Investigation (FBI), the Congress on November 20-21, 1974, overrode his veto.
That open government reform era also produced the Federal Advisory Committee Act (FACA) which opened industry-government committee records, and the Case Act of 1972 (which required publication of executive agreements in foreign policy, then the Privacy Act of 1974 (which attempted to restrict the publication of personal, private material held by government.)
The Reagan administration (1981-1988) came to power in part through the campaigning efforts of a former intelligence agent, Bill Casey, who became Director of Central Intelligence (DCI) in 1981. (There had been a pronounced shift to conservatism in opinion surveys in the late 1970s.) It proceeded to obtain from Congress the largest peacetime increase in defense and intelligence appropriations, with a new generation of military hardware. Its foreign adventures included intervention in Lebanon, Libya and Grenada, in addition to the Iranian arms sales, support of the central American contras, and negotiations over nuclear weapons reduction (START) with the Soviet Union. The Reagan administration also enjoyed for a while a republican majority in the Senate, if not the House.
The 1984 removal of the need to search the CIA's operational files in response to FOIA requests came through negotiation between lawyers for the administration, republicans and democrats in the senate, and the ACLU's center for national security studies. With divided political control of congress, the move was balanced with the removal of fees on the first 100 pages of documents released to a requester.
The 1986 reform of the FOIA was imposed as a rider to the Omnibus Crime Control Act of October, the flagship of the war on drugs. Since the political climate made it difficult to oppose the bill, some 250 riders were attached. The war on drugs blurred the distinction between law enforcement and intelligence by providing for defense and intelligence agencies to collaborate and provide assets for the interdiction of drug supply on the borders and shores of the US. In haste, negotiations on FOIA amendments produced a limited reform in which processing fees were charged to commercial requesters, though not to the press or academic authors. It took a lawsuit involving the non-profit National Security Archive's declassified records database to establish that public interest groups qualified like the press insofar as they focussed on broad publication of their material.
Clinton administration initiatives on official information included:
The first Clinton administration (1993-1996) produced an Attorney
General's memorandum calling for discretionary release of records, an executive
order reducing the scope of national security classification and encouraging
earlier and more active declassification of security records. It
also appointed a privacy issues counsellor (law professor Peter Swire)
and cooperated with the Moynihan Commission report on the security classification
system. The administration declassified and released large volumes
of old national security documents, coordinated by an active Information
Security Oversight Office (ISOO). Energy Secretary Hazel O'Leary
ordered a major effort to review and release old records on atomic energy,
and the Environmental protection agency (EPA) placed its Toxic Resource
Inventory (TRI) on the internet, along with hazardous materials risk assessments,
the better to receive suggestions for improving public safety. The
eventual White House Chief of Staff, John Podesta, had in the 1980s acted
as senate subcommittee staff counsel on freedom of information and technology
issues, for Senator Leahy.
After a decade of building a record of discussion, Congress enacted the Electronic FOIA of September 1996. The Act formalized the practice of releasing records in any reasonably requested form, required publication of records (by implication) on the internet, and clarified FOIA reporting requirements to render performance statistics across the hundred federal agencies more consistent and more useful. The process was bipartisan as has always been the case when freedom of information is being strengthened, though some proponents wanted to wait on reform until a democartic president could guarantee .
There were fewer cases of withholding political records under Clinton, whose second administration (1997-2000) was characterized by a drawn-out public sexual scandal culminating in impeachment by the House and a failed prosecution in the Senate. This "Lewinsky" scandal, despite initial denials of an affair by the president, resulted in an unprecedented outpouring of testimony and records about the president's personal life.
The first Clinton administration reacted to the first bombing of the World Trade Center towers in 1993 by strengthening counter terrorist efforts under the leadership of the Justice department, adopting law enforcement primacy. This intensified following the exposure in 1996 of Ramizi Youssef's plot to crash multiple airliners into the pacific.
The second Clinton administration had its own national security isues to deal with, notably including the hunt for Osama Bin Laden (OBL) following the embassy bombings in East Africa in 1998, and the response of rocketing a pure drug factory in Africa and OBL's headquarters in Afghanistan. The hunt for OBL, according to several statements by National Security adviser Sandy Berger (and others), became almost an obsession, but never resulted in actionable intelligence that permitted the elimination of OBL. (Critics of this failure have argued that the Clinton administration was still in law enforcement and legal constraint mode rather than an aggressive covert action mode. However, on balance it seems that the Clinton administration was much more concerned with this during 1999-2000 than was the W. Bush administration during January - September 11, 2001.)
Enter the Dragon: National Security Issues
during the administration of W. Bush.
The W. Bush administration was characterized initially by unilateralism,
rejection of treaties representing multilateral approaches to safeguarding
the environment and controlling some types of advanced weapons. In
the first ten months of 2001, it showed less interest than its predecessor
in the fight against Al Qaeda (AQ, or "the base") and its leader, Osama
Bin Laden (OBL). Following the September 11 attacks, however, the
president found a new voice, new counter terrorist policy, new homeland
security bureaucracies, and a new doctrine of preventive war.
The domestic security initiatives included:
Taken together, the W. Bush national security initiatives clearly represent the strongest era of national security dominance since the depths of the cold war. During the 2004 presidential campaign, the democratic challenger Sen. John Kerry was unable to offer a robust alternative to these national security initiatives. Among the democrats during the primary season only Gov. Howard Dean argued boldly against war with Iraq. In Pew center polling and the New York Times reports of November 2004 exit polls, those in the population believing the war in Iraq was part of the war on terrorism, favored reelecting W. Bush -- while those seeing the distinction between the two wars favored the challenger. Generally W. Bush might not have been relected on the state of the economy, or issues of domestic policy (such as health care, social security, or education). In a real sense, he won a narrow (51-48%) relection on the basis of national security. These factors all indicate a national security era.A military and intelligence campaign against AQ, primarily using aerial bombardment plus special forces to lead and support Afghan warloards in fighting and ousting the Taliban regime and the local Al Qaeda forces. A more conventional infantry battle against AQ at Tora Bora in mountainous eastern Afghanistan, which although doing considerable damage to AQ, was less successful in preventing the escape of AQ survivors. Some degree of multilateral cooperation (Comras, 2004) in tracking AQ's financial assets via the United Nations (UN) Extensive increases in apropriations requests for defense, intelligence and security. Symbolic refusals to make public the intelligence budget totals, and apparent reversal of a trend. Apparent de facto reversal of president Ford's executive order (1975) which had symbolically barred political assassinations by the US (though not necessarily those via US allies). Attempts, led by Secretary of State Colin Powell, to secure United Nations support for actions against Iraq. The public use of intelligence material to back claims that Iraq's development of weapons of mass destruction (WMD) and connections to terrorist organizations (hosting Al-Zarqawi, possible meetings with AQ, and financial support for the PLO) amounted to a threat to the US. An Anglo-American invasion and occupation of Iraq in 2003-04 by large scale conventional forces, with a coalition of other nations offering minor assistance in battalion or regimental strength.
The USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) was passed on 26 October, 2001, just weeks after the most deadly terrorist attacks upon the US, and amid fears of further attacks from an amorphous network of islamic fundamentalist extremist groups, led by Al Qaeda. The USA Patriot Act was passed nearly unanimously by the Senate 98-1, and 357–66 in the House (US DOJ.Gov). It permits detention and deportation of noncitizens who provide "assistance" for the lawful activities of a group officially claimed to be a terrorist organization, even if the claim is newer than the assistance. An appointee of the Secretary of State has the prerogative to designate any group having engaged in violent activity as a terrorist group. Immigrants who are not accused of terrorism may be subjected to indefinite detention or (in the event of a visa violation) deportation.
In the realm of information warfare, the Act enables the FBI to seek information from internet service providers about the internet use of suspects, in addition to the traditional reading and computer use of libary patrons. The FBI already had a software program (CARNIVORE) capable of searching the internet email streams at high speed, and had developed a library usage awareness program targetting such materials as nuclear explosives or espionage targets in the 1980s -- but amid some opposition, had constraints on its authority to search.
As the US DOJ argues (2002), "Prosecutors can now share evidence obtained through grand juries with intelligence officials -- and intelligence information can now be shared more easily with federal prosecutors." Collaborative investigation is encouraged: "Now police officers, FBI agents, federal prosecutors and intelligence officials can protect our communities by “connecting the dots” to uncover terrorist plots before they are completed."
The Act also grants broader authority (Doyle, 2002) to federal law enforcement officials to intercept communications for both law enforcement and intelligence purposes. It has been criticized (Electronic Frontier Foundation, 2002) for altering 15 statutes to achieve an excessively comprehensive approach to surveillance for counter-terrorism and homeland security. A generation ealier, there were widespread concerns (Church Committee Report, 1974; Donner, 1981; Franck and Weisband, 1974; Wise, 1974; Schlesinger, 1974) of excessive intrusions into civil liberties in the cause of surveillance of the antiwar campaigns of the 1970s.
The USA PATRIOT Act negated (Ebenger, 2004) several of the privacy protections afforded private email under the Electronic Communications Privacy Act (ECPA). Further, (Cowles, 2004) it undid the Safe Harbor compromise arrangement for European Union personal data, restricted by the EU data privacy law, held in the US by commercial databanks.
In 2002, resistance came from an unlikely source. The Foreign Intelligence and Surveillance Act (FISA) court, which had approved all of the first 900 wiretap surveillance requests, ruled that "federal prosecutors, FBI agents and intellligence operatives keep intact a wall between those investigating ongoing criminal activity and those gathering intelligence on potential terrorist attacks and acts of espionage." (Meyer and Shogren, 2002, A1).
Within a year of the passage of the USA PATRIOT Act, administrative actions to detain alleged terrorists without trial, access to attorneys or releasing their names, were challenged (Brewster and Stowers, 2004) under the (FOIA) by several US District courts. Judge Gladys Kessler, arguing "secret arrests are a concept odious to a democratic society," ordered under the FOIA that the identities of many of those detained in secret be made public. (Liptak, Lewis and Weiser, 2002, A18). In Center for National Security Studies et al., v. Department of Justice (July, 2003), the D.C. Circuit overturned a district court ruling requiring the Justice Deptartment to disclose the names of detainees and their attorneys. By 2-1, it ruled that the government's claim under FOIA exemption (b)(7)A, for interference with an investigation or proceedings, should again be given great deference in the context of a national security investigation.
A flurry of other bills and resolutions was passed by the Congress (Library of Congress, 2002) in the year following the 9/11/01 attacks.
The bureaucratic arm of the Homeland Security Act resulted from the largest administrative reorganization in decades and possibly in history. The new Homeland Security Department (HSD), an amalgam of numerous agencies and units extracted from other departments, acquired the Coast Guard from the Treasury, the Immigration and Naturalization Service (INS) from the Justice Department (DOJ), absorbed the Federal Emergency Management Agency (FEMA) and three national nuclear laboratories. The effect would be to redirect the activities of these units into counter terrorist purposes.
HSD took on extensive responsibilities. It moved (Bush, 2002) to protect air travel with additional sky marshalls; deploy the Coast Guard in new roles in the ports; deploy national guard troops alongside a new transport security passenger screening force to secure baggage; and screen mailing stations from anthrax and other toxins, while protecting water supplies and acquiring antidotes to possible biological and chemical attacks.
W. Bush appointed senior foreign policy staff (Donald Rumsfeld, Paul Wolfowitz, Richard Cheney and others) with an aggressive, realist point of view, enunciated in the 1997 "Statement of Principles of the Project for a New American Century." These voices were only slightly moderated by Condoleeza Rice and less so by Colin Powell. (The announcement in late 2004 of Powell's retirement and intended replacement by Rice at State would appear to strengthen the voice for a hard line in foreign policy.)
The Bush doctrine, enunciated in his speech to congress a few days after the 9/11 attacks (Bush, 20 Sep. 2001), committed the US to fighting terrorists and the states that harbor them: "Our enemy is a radical network of terrorists, and every government that supports them. ...Our war on terror begins with Al Qaeda, but ... It will not end until every terrorist group has been found, stopped and defeated. ... From this day forward any nation that continues to harbor or support terrorism will be regarded by the US as a hostile regime."
The doctrine and the National Security Decision Directive that embodied it, has been widely criticized, notably by Gaddis (2002) on the grounds that preventive war exceeds the accepted notion of preemptive war. In preemptive mode a nation strikes to turn the tables on an imminent attacker. In preventive mode, Bush proposed the US strike at rogue states in the absence of any imminent threat. The doctrine may suit short term interests while devaluing the restraint that may inhibit others from attacking the US in the future. Thus it represents a muscular realism, that utilizes current US might rather than relying on an international culture of restraint.
Responsibility for explaining the application of the doctrine to war with Iraq fell to Secretary of State Powell, backed visibly by DCI George Tenet. Powell argued that Iraq had violated a series of United Nations (UN) resolutions, while developing Weapons of Mass Destruction (WMDs). For evidence, he produced reconnaissance photographs purporting to show a chemical weapons bunker and mobile laboratories. The postwar US Duelfer Report and the British report on similar claims by the Blair administration both rejected that this large scale WMD program existed after 1995. The allegedly imminent threat was not a genuine threat at all. Much maligned UN sanctions and inspections had succeeded in frustrating Iraq's ambitions. Yet in the short term the speech had the desired effect of securing some domestic opinion and international support for the invasion of Iraq. President Bush's public response to criticisms of a credibility gap was that all analysts at the time had been wrong.
Information and Privacy Issues during the administration of W. Bush (43).
Domestic initiatives to reduce processing and releasing public records under the FOIA included:
The DOJ, being the lead agency on FOIA processing guidance across the federal government, appeared (Access Reports, 11 Feb. 2004, 1-2) to pressure its own Office of Information and Privacy (OIP) to redact extensive factual material from a consultant's unfavorable Diversity Report under exemption (b)(5) for internal deliberative processes, which normally only protects opinions used to develop a decision. The redactions became controversial when the words were restored by font calculating software and placed in an internet archive. Reps. John Conyers(D-MI) and Jerold Nadler (D-NY) requested an Inspector General's investigation, which exonerated OIP. In the process, DOJ took eight months and displayed an aggressive policy of withholding material that could easily have been released.
White House Chief of Staff Andrew Card's memorandum, March 2002, urging agencies to protect sensitive but unclassified records, exceeded the scope of Reagan's policy that officials, when in doubt, should classify records. The Information Security Oversight Office (ISOO), which had faciltated record-breaking declassification of security documents under the Clinton administration, reported a 25% increase in classification decisions during 2003, to a total of 14.2 million. The ISOO acknowledged that, while classifications were expected to increase during military interventions, overclassification was a problem. It pointed out (ISOO Report, 2004) "allowing information that will not cause damage to national security to remain in the classification system, or to enter the system in the first place, places all classified information at needless increased risk." It urged, "information not eligible for inclusion in the clasification system remains unclassified or is promptly declassified."
The general removal after September 2001 of mass quantities of data from ".Gov" websites, though difficult to quantify, appeared to be dramatic in scope. A 1998 public interest group's survey of official web sites had found them not in compliance with the EFOIA's requirements even two years after passage of those amendments. Yet such niceties were swept away in the new era of counter terrorism, in which an open society deems itself vulnerable when it publishes its weaknesses. The Nuclear Regulatory Commission closed its entire website after Semtember 11, then partially restored the site, in 2004 removed public access to its online document library on the grounds that (Access Reports, 3 Nov. 2004, 2) "agency guidelines provide that any information that could be useful or could reasonably be expected to be useful, to a terrorist in a potential attack should be withheld."
Agencies have even demanded (Access Reports, 11 Feb. 2004, 10) that media or public interest organizations remove from web sites information the agency deemed harmful. The Transportation Security Authority requested the House Government Reform Committee and the independent Federal Document Clearing House to remove a government contractor's public testimony about security gaps at Rochester airport. Both complied, but Congressional Quarterly, the venerable research firm, argued, "any government statement vountarily made public can't be classified retroactively." An archiver at the Federation of American Scientists was also asked by the Army's electronic library chief, to remove a document about military procurement. The Army later found the document was not in fact classified as secret, and apologized.
W. Bush's executive order, repealing the Reagan E.O., implementing the Presidential Records Act by requiring claims to secrecy by a former president to be upheld by a sitting president, thereby ensuring such records are withheld by subsequent presidents unless ordered released by a court.
A policy (currently being studied by the Government Accountability Office, GAO) to deny fee waivers and favorable fee categories to FOIA requesters. This has taken the form of questioning whether the released information would be disseminated, and whether it actually would contribute to public understanding of the functioning of government.
Federal Energy Regulatory Commission (FERC) regulations implementing the Critical Infrastructure Information Act have involved wholesale avoidance of the FOIA. FERC claims that none of this category of information is subject to the FOIA, since it is comprehensively protected by exemptions (b)(2), (b)(4) and (b)(7). This is an aggressive policy, since all exemptions under the FOIA's section (b) are subject to review for segregable portions. The (b)(2) exemption for internal personnel rules has long been restricted by the courts to the minor, housekeeping matters which congressional sponsors intended. The application of the (b)(4) exemption for confidential, competitive business information to a terrorist attack damaging business is certainly novel. The (b)(7) exemption is explicitly limited to records compiled for law enforcement purposes; hence this application again seems to blur the traditional line between law enforcement and national security.
The W. Bush administration's strategy to shift the balance away from open government practices and towards national security secrecy is allegedly broad ranging. Rep. Henry Waxman's Report concluded (2004), "The Bush administration has systematically sought to limit disclosure of government records while expanding its authority to operate in secret." Accompanied by the "Restore Open Government Act of 2004" (H.R. 5073), it found, "the administration's actions represent an unparalleled assault on the principle of open and accountable government." Waxman, a liberal democrat from California, and a frequent critic of the Bush administration, himself had been frustrated in seeking information and had filed two lawsuits under the seven-member rule.
The report found fault with Vice President Cheney's energy policy task force, essentially an industry advisory committee, for its secrecy in apparent violation of the Federal Advisory Committee Act, 1982 (FACA). The adminsitration further claimed several industry advisory committees were exempt from the FACA, thereby appearing to protect business interests in policymaking from public scrutiny. (It must be noted that there was a partial precedent set by the Hilary Clinton Health Care task force in 1993, where a large (if more varied) committee claimed exemption from the FACA partly on the grounds that the first lady and vice first lady were not government officials.)
Professor Fought's testimony to the Waxman subcommittee argued, rather colorfully: "The policies and pronouncements of the Bush administration -- in particular the Ashcroft and Card memos -- are not only sucking the spirit out of the FOIA, but shriveling its very heart."
Waxman's HR 5073 bill would replace the specific exemption from the FOIA to permit withholding of information about the internet's critical insfrastructure -- with the Senate's compromise language. It would also reinstate the Reagan executive order on the Presidential Records Act, prohibit secret advisory committees, and again permit the award of attorney's fees to FOIA requesters where they are the catalyst for records being made public. In the political climate before 9/11/01, none of this would have out of the ordinary.
Conclusions.
The new century has proved no exception to the rule that national security
tides wash away some degree of open govenment and citizen privacy.
It also may follow the pattern that after some years, the tide of open
govenment flows again. There is a certain irony in the leadership
of the drive for security falling to the president who most often promotes
in his speeches the idea of liberty.
There is a striking similarity between the passage of the USA PATRIOT Act and the British Official Secrets Act (OSA), 1911. There (Williams, 1965; Thomas, 1991), during a German spy scare and while the German cruiser Panther was threatening the Moroccan coast off Agadir, the poorly drafted OSA was rushed through the House of Commons in half an hour. Debate, normally vigorous, was so limited that any members rising to oppose the bill were shouted down or pulled to their seats. The bill created some 3,400 offenses for releasing any official information, politically justified by a marginal note that these were penalties for spying -- a limitation without legal effect. This temporary measure lasted indefinitely, with occasional prosecutions of journalists, civil servants and a retired counterintelligence officer led in the 1980s to increasingly scandalous trials. The OSA was not supplemented by a freedom of information act (curently being phased in) for nearly a century. Crises do not make for subtle policy.
The US remains on the world scale, as Rourke wrote in 1961, a culture characterized by luxuriant publicity. Even in the war in Iraq, television audiences have been treated to the video shot by embedded reporters among the troops. Many images shot by troops themselves with digital cameras, have made their way around the internet via email. The 2004 Abu Gharaib prison abuse scandal in Iraq was thoroughly discussed in public. Many unclassified military powerpoint briefings have circulated on the internet, including those about battles in Tora Bora (Afghanistan) and Fallujah (Iraq). Russ Kick (Access Reports, 30(9):2, 5 May 2004) managed to obtain (from a military field office) under the FOIA the images of flag-draped military coffins being returned from Iraq to the US, despite a new policy (at headquarters) to withhold them. The justification of personal privacy (FOIA (b)(6)) of the survivors (now supported by the Supreme Court in NARA v Favish, 2004) fell apart when the coffins were seen to be anonymous. The ebb and flow of security and openness is relative to the highly garrulous political culture of the US.
Other liberal democratic societies, including Britain, have modified civil liberties in times of terrorism or war. Prevention of Terrorism acts in the UK have provided forms of detention and panel trials without juries. Even under Mrs. Thatcher (who had narrowly survived a major bombing and lost close colleagues to terrorism) these provisions remained relatively narrowly targetted. Exceptions, such as internment in Northern Ireland in the 1970s, were ended under judicial criticism. There is some risk, even in the more human rights conscious and more open American society, that the Patriot Act will prove to be overkill in terms of the practical protection of the US population. The W. Bush administration is at risk of being criticized for excessive use of the counter terrorist rationale for broad changes in official information policy, all of which point to less open government. In the short term, until policies are moderated, the US has lost the moral high ground from which security presidents such as Reagan and Bush have preached the American mission.
This indicates a contrast (Banisar, 2004) with the trend across the world, where twenty nine countries (including emerging democracies such as Mexico, as well as the UK and Canada) now have adopted freedom of information (or access to information acts) in some form.