Abstract.

• The Bush administration since 2001 has become known above all as a national security presidency.
• This policy direction, exemplified by the USA Patriot Act, new regulations on treatment of prisoners and new policy on foreign intelligence surveillance, puts it in tension with federal statutes and common law on official information control.
• These include, besides two dozen Supreme Court opinions and many District of Columbia circuit court opinions, a group of statutes such as the Electronic Freedom of Information Act, Privacy Act, Presidential Records Act, Federal Advisory Committee Act and Administrative Procedures Act.
• The roles of three leading members of the administration, Vice President Dick Cheney, Director of Central Intelligence George Tenet and Secretary of Defense Donald Rumsfeld, have come in for particular criticism of the press for their control of official information.
• This project will explore executive actions and statutory change since 2001 in search of patterns that may indicate whether there has been a substantial policy shift -- or merely cosmetic changes -- on official information.
• The paper will place those changes in the context of the policy history since 1966.

A substantial academic research paper for a political science (or related field) conference.
An article for Access Reports (an influential legal newsletter, in which this s=author has been published previously).
Substantial additions to out Freedom of Information academic community website, which holds documents and articles on related topics.
If possible, an article for submission to a scholarly or law journal.

Documentary and web based readings from official, interest group and academic sources.
Some interviews of officials and interest group experts in person or via telephone.

Political Science, History or related field students with GPAs of 3.2 or higher, sophomore status or higher. who display a real interest in research in classes, preferably those taking Constitutional Law in PSC 314.
Examples of those eligible: R. Walker Garrett, Patrick Dean, Elizabeth McLain, & Alexander Zachos.

This is an ongoing project with potential for a series of conference papers and articles.
The intersection of the war on terrorism and information control is a fertile one not only for the US, but for comparative study.
Students will be able to research bills and case law as these develop over the next several years.

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 administration 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 government.

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 government.  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 Bushes (more so W. Bush.)  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 circle 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.

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:

• widespread domestic surveillance of individuals including citizens with even loose connections to terrorism.
• arrests, detention and deportation of such individuals sometimes without the release of names of those affected.
• increased surveillance of the internet and library patrons.
• radically increased searching of airline passengers regardless of reasonable suspicion constraints.
• erosion during counter terrorist investigations of the walls between law enforcement and intelligence, with a focus on cooperation and shared information.
• a major bureaucratic reorganization creating a new Homeland Security department.
• repurposing of the Coast Guard for counter terrorist (CT) port security measures.
• developing and then dropping the Total Information Awareness Program, to integrate databases of law enforcement and intelligence in the pursuit of terrorists.
• Experiments in cooperation with private companies including Northwest Airlines to share passenger data.  (Northwest's action was upheld by the Transportation department since its privacy policy, while banning sales of passenger data, did not ban giving away the data.  (Access Reports, 22 Sep. 2004, 11-12)

A military and intelligence campaign against AQ, primarily using aerial bombardment plus special forces to lead and support Afghan warlords 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 appropriations 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.

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 library 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 targeting 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 earlier, 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.

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 marshals; 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.

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."

Information and Privacy Issues during the administration of W. Bush.

Domestic initiatives to reduce processing and releasing public records under the FOIA included:

• The Ashcroft memo, October 2001.
• The Card memo, March 2002.
• The executive order on the Presidential Records Act.
• The FOIA fee waiver denial policy.
• FERC's removal of critical internet infrastructure information from release under the FOIA.