In early October 2001, grief still gripped much of the nation. Anthrax-laced letters kept the public, as well as media, in a state of acute anxiety. In this tense atmosphere, the U.S. government quietly changed its policy governing the Freedom of Information Act (FOIA). The president didn’t ask the networks for television time. Nor did the attorney general hold a press conference. As a result, most Americans had no idea that one of their most precious freedoms disappeared on October 12.
Yet it happened. In a memo that slipped beneath the political radar, U.S. Attorney General John Ashcroft vigorously urged federal agencies to resist most FOIA requests.
Enacted in 1966 and strengthened in 1974 in the wake of the Watergate scandals, the FOIA has been hailed as one of our greatest democratic reforms. Think of it as our national sunshine law. It allows ordinary citizens—journalists, newspapers, historians, and watchdog groups—to hold the government accountable by requesting and scrutinizing public documents and records. Without fanfare, the attorney general simply quashed it.
Rather than asking the heads of federal agencies to consider when the public’s right to know might collide with the government’s need to safeguard our security, Ashcroft instead asked them to judge whether “institutional, commercial and personal privacy interests could be implicated by disclosure of the information.” Even more disturbing, he wrote:
When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions 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.
This memo overturned his predecessor Janet Reno’s 1993 policy of releasing all public papers unless the government could demonstrate the potential for serious harm.
I discovered this memo in late December, quite by accident, while investigating how a FOIA request had exposed the abuse of farm subsidies. I was stunned that such a change in policy had received so little public attention. Now, months later, I am still astonished that nearly all the mainstream media have ignored Ashcroft’s memo. When coupled with George W. Bush’s November 1 executive order in which he gave himself the power to seal all presidential records since 1980, the crackdown on information is chilling.
In the aftermath of September 11, we witnessed a flurry of federal orders designed to beef up the nation’s security. Many anti-terrorist measures carefully balanced the public’s right to know with the government’s responsibility to protect its citizens. Who, for example, would argue against taking detailed plans of nuclear reactors, oil refineries, or reservoirs off the Web?
Yet by the start of 2002, half the country already worried that the Bush administra...
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