Closing the Courtroom
Legal policy is where the administration's desire to maintain secrecy has excited the most controversy. Since the first few days after the Sept. 11 attacks, the federal government has insisted on a rare degree of secrecy about the individuals it has arrested and detained.
The immigration hearings held for hundreds of people caught in sweeps after the bombings have been closed to relatives, the news media and the public.
The names of those detained by the Immigration and Naturalization Service have been kept secret, along with details of their arrests, although on Dec. 12 the Justice Department told The Associated Press there had been 765 of them, of whom only 6 were still in custody.
A few dozen individuals have been held as material witnesses, after the Justice Department persuaded federal judges that they had information about terrorism and might flee if released. Neither their names nor the total number of them have been made public.
The administration has also kept a tight lid on the identities of the military detainees being held at Guantanamo, Cuba. But in considering how to deal with them, in military tribunals, the government has moved away from secrecy. When Mr. Bush directed the Defense Department in November 2001 to set up military tribunals to try noncitizens suspected of terrorism, one reason cited was the ability to hold those proceedings in secret, to protect intelligence and to reduce risks to judges and jurors. But when the rules were announced in March, they said "the accused shall be afforded a trial open to the public (except proceedings closed by the presiding officer)."
While the government's policy in the immigration cases has suffered some judicial setbacks, appeals and stays have allowed it to remain in effect.
Fundamentally, the government has argued against opening hearings by contending that they would make available to terrorists a mosaic of facts that a sophisticated enemy could use to build a road map of the investigation, to know what the government knew or did not know, and thus to escape or execute new attacks.
That argument was also made in the main case involving releasing the names of those detained, where the government also maintains that the Freedom of Information Act's right to privacy would be violated by a release of the names.
Legal scholars have objected particularly to the decision to close all the immigration hearings, rather than parts of them. Stephen A. Schulhofer, a professor at New York University Law School, said there was already a legal provision for closing a hearing when a judge was shown the necessity.
The "road map" explanation seemed implausible, Mr. Schulhofer said, because the detainees had a right to make phone calls, in which "a real terrorist could alert cohorts who would not have known he was detained."
At a recent seminar at Georgetown University Law School, Assistant Attorney General Michael Chertoff said protecting privacy was the main reason for suppressing the names. Representative Barney Frank, Democrat of Massachusetts, dismissed that rationale, asking Mr. Chertoff, "How can you even say that with a straight face?"
So far, the government has won challenges to the detention of material witnesses.
On releasing the names, it lost in a Federal District Court here, but appeared to have impressed two of the three appeals court judges who heard the case in November.
On the question of a blanket closing of "special interest" immigration hearings, an appeals court in Cincinnati ruled against the government in August and one in Philadelphia ruled in its favor in October. The Supreme Court is likely to be faced with choosing between them.
Putting Sand in the Gears
Immediately after the Sept. 11 terrorist attacks, governments at all levels feared that information they made publicly available could be useful to terrorists, and began moves to curtail access, a trend the Bush administration encouraged.
The first of the strictures on information resulting from Sept. 11 were described by Ms. Graham, the Brookings and Kennedy School scholar, in her book, "Democracy by Disclosure" (Brookings Institution Press, 2002).
"Officials quickly dismantled user-friendly disclosure systems on government Web sites," she wrote. "They censored information designed to tell community residents about risks from nearby chemical factories; maps that identified the location of pipelines carrying oil, gas and hazardous substances; and reports about risks associated with nuclear power plants."
Many of those withdrawals mirrored efforts industry had been making for quite a few years, arguing that the public did not really need the information. Some information has been removed from public gaze entirely. James Neal, the Columbia University librarian, said that officials of libraries like his around the country that serve as depositories for federal information "have some concern about the requests to withdraw materials from those collections." Perhaps even more important, Mr. Neal said, was that "we also do not know what materials are not getting distributed."
Some material that has been removed from Web sites is still available, though obviously to fewer people, in government reading rooms. The chemical factory risk management plans cited by Ms. Graham are no longer available through the Internet, said Stephanie Bell, a spokeswoman for the Environmental Protection Agency. But individuals can look at up to 10 of them and take notes (but not photocopies) in 55 government reading rooms around the country, Ms. Bell said. There is at least one reading room in every state except Maine, Nebraska, North Carolina, South Dakota, Vermont and Wyoming.
Last March the Defense Department issued a draft regulation concerning possible limits on publication of unclassified research it finances and sharp restrictions on access by foreign citizens to such data and research facilities.
This prompted some concerted resistance from scientists. Bruce Alberts, a biochemist who heads the National Research Council and the National Academy of Sciences, told the academy's annual meeting on April 29:
"I am worried about a movement to restrict publication that has been proceeding quietly but quickly in Washington. Some of the plans being proposed could severely hamper the U.S. research enterprise and decrease national security. It is being suggested that every manuscript resulting from work supported by federal funds be cleared by a federal project officer before being published, with serious penalties for violations. Another rule could prevent any foreign national from working on a broad range of projects."
Even though the department withdrew its proposal and officials say there has been no decision on whether to try again, the scientists say they are still worried.
The new Ashcroft directive on Freedom of Information requests has also begun to be felt. A veteran Justice Department official said he believed that fewer discretionary disclosures were being made throughout the government because "as a matter of policy, we are not advocating the making of discretionary disclosures."
Delays are one clear reality. The General Accounting Office reported last fall that "while the number of requests received appears to be leveling off, backlogs of pending requests governmentwide are growing, indicating that agencies are falling behind in processing requests."
To Thomas Blanton, who helps run the National Security Archive, which collects and posts documents gained through Freedom of Information Act, that is a clear effect of the Ashcroft order.
"What these signals from on high do in a bureaucracy, they don't really change the standards," Mr. Blanton said, "but they put molasses or sand in the gears."
Copyright 2003 The New York Times Company
Reprinted from The New York Times: