Freedom of Information Act Losing Its Power

We know the FBI spied on the late John Lennon decades ago. We learned just last year that it has recently been spying on animal-rights activists and environmentalists, too. And we now know a certain birth-control patch can cause deadly blood clots.

We know all these things, and a lot else besides, only because of the 40-year-old Freedom of Information Act, which forces the government to release material it might otherwise keep from public view.

But as the government combats terrorism, it has become ever-more reluctant to release information.

Take the experience of Associated Press reporter Paisley Dodds. From early 2002 until last year, Dodds tried to track hundreds of terrorism suspects held by the U.S. military at Guantanamo Bay in Cuba.

Dodds wanted to learn who the detainees were and the evidence against them.

“I spent two years in Guantanamo naively thinking that the government and the military would give me the information that I had asked (for). Because I knew that the public had a right to know this,” Dodds says.

But that didn't happen. Authorities wouldn't release transcripts and made it hard to attend hearings on detainees.

“We have been shown what the government and what the military wants us to see,” Dodds says. “As a journalist, that’s problematic. I can’t honestly say that I understand what happens inside of Guantanamo.”

In the fall of 2004, Dodds filed a request under the Freedom of Information Act. The act requires federal agencies to respond within 20 days and to provide information in a timely way.

But the Pentagon didn't budge. And the Associated Press filed a federal lawsuit early last year. Attorney David Schulz says the first batch of documents the AP received last June didn't help much.

“So you’d get a transcript, but you didn’t know the name of the detainee,” Shulz says. “Any reference to where they were from, what job they did, names of family members – anything at all that might possibly allow someone to identify the detainee – was just removed from the document.”

This winter, after a judge's later ruling, the Pentagon released transcripts that contained the names of several hundred detainees – but not all of them.

Bryan Whitman is a senior spokesman for the Defense Department. He says there's good reason to guard some secrets.

“This is a nation at war, and we are detaining individuals as enemy combatants out there,” Whitman says. “There is a certain value to having some ambiguity with respect to who you have and who you don’t have – and not revealing that to the terrorist networks.”

Whitman points out that Defense Secretary Donald Rumsfeld helped push for the original Freedom of Information Act when he was a congressman four decades ago.

“We only withhold information when we believe that disclosure would adversely affect national security or threaten privacy of our service members,” Whitman says. “It is a balance. It is judgments that are made by people. And reasonable people can have differing opinions – and that’s why it’s important that we have ways to resolve those differences.”

These days, that often involves going to court. The American Civil Liberties Union sued the government for documents that showed the FBI had been spying on domestic activist groups, such as Greenpeace and PETA. The revelation in December caused a political outcry.

“We live in a democracy,” says Steven Shapiro, the legal director of the ACLU. “It is supposed to be as open as it can reasonably be so that, among other things, the voters can make informed choices when they go to the polls at the next election, so they can decide whether they approve of what the government has been doing.”

Soon after former Attorney General John Ashcroft took office in 2001, he moved to restrict the flow of information. Yet administration officials say the public remains pretty well-informed. Mark Corallo was Achcroft's chief spokesman for three years. He says context is everything.

“You know, I think people have to remember we are in a global war on terror,” Corallo says. “They have got to understand that the government is, in times of war, more sensitive to the release of information. And that sensitivity in the national security arena bleeds into everything else.”

Media executives say they also care about national security. So NPR asked Corallo: Did any of the disclosures do any harm?

“I can’t think of a single case where information was released to the public and it had an adverse impact on either national security or was damaging to somebody’s privacy,” Corallo said.

The Pentagon never argued that disclosing the identity of the detainees at Guantanamo would harm national security. Instead, officials said it would violate the detainees' privacy under the principles of the Geneva Conventions – even though they aren't being granted full prisoner-of-war protections under the same code. The Pentagon's Bryan Whitman says relatives of detainees could become vulnerable.

Associated Press reporter Paisley Dodds says she'd rather not have had to rely on the Freedom of Information Act, but she didn't know how else to learn about the detainees.

“From a professional standpoint, it’s very, very frustrating, because you wonder what stories you’re not telling because of the access you’re not being given,” Dodds says.

The Associated Press is still suing to identify hundreds of unnamed detainees. Another hearing is scheduled for next Monday.

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