Ashcroft’s first shot over the bow was followed by two administration-backed laws. The first, the hastily passed Patriot Act, included provisions for the government to spy on library patrons’ reading materials, and prohibited librarians from informing patrons that they were under investigation (Ashcroft claims the law has yet to be used for this purpose, although critics say that ultimately begs the question of its utility). Besides a chilling effect on freedom of expression, Kirtley believes the Patriot Act’s expanded surveillance powers also have implications for a free press. “Knowing that you’re constantly subject to government surveillance changes the way you operate; it changes how you do business; it changes how you communicate with other people. This is true for everyone, not just journalists, but to me it is a very big deal if the government thinks it’s going to conduct surveillance of journalists.
“If the government is able to collect information about us, to release it selectively, and to withhold it selectively, then we’re drifting very close to the environment I found in the Czech republic right after the Velvet Revolution, where people were afraid to talk to each other on the streets because they were so used to surveillance. Frankly, I think we have a lot more to fear from the government than we do from our fellow citizens.”
The massive Homeland Security Bill, signed into law in 2003, contained a major exemption to the Freedom of Information Act and state open records laws: “Critical infrastructure information” that revealed security vulnerabilities in communications, transportation, financial services and other infrastructure, if it were voluntarily provided to the government, would be exempt from public disclosure. Worse yet, in the eyes of First Amendment advocates like Kirtley, were the new and severe penalties—firing, fines and/or up to a year in prison—for government employees who disclosed such information. “What civil servant would risk punishment of this magnitude by revealing information in the interest of promoting an abstract ‘public’s right to know’?” she wrote recently.
As successful as it has been, the Bush administration’s legislative agenda on secrecy pales in comparison to the culture of secrecy that pervades the executive branch’s everyday work. Sometimes it cites national security as a reason; sometimes it’s plain old executive privilege. Either way, it would be hard to fault the administration for being inconsistent as it fights efforts to gather information that might be important to its accountability: The names of hundreds of detainees being held incommunicado in American prisons post-September 11 remain unknown, as do those of the military’s prisoners at Guantanamo Bay, Cuba; Vice President Dick Cheney’s refusal to hand over his own energy task force records will soon be considered by the Supreme Court; presidential records from the Reagan years, which were scheduled to be released several years ago, have been kept under wraps; in December, the White House did not release news of Iraq administrator Paul Bremer’s convoy being attacked until two weeks after the fact; and the administration amended the way national security information is classified so that information already released to the public could be reclassified as secret.
“How did we come to this: a Kafkaesque world where information that is in the public domain can be retroactively declared secret?” Kirtley asks. It seemed only fitting that the week The Rake spoke with Professor Kirtley, the FBI had advised citizens to be on the lookout for suspicious people carrying almanacs, volumes chock full of public information issued by the government. In a similar vein, during a January 2002 debate on NPR, Kirtley pointed out the folly of the administration’s terror alerts. “I found it incredibly frustrating to be on alert about an attack that was coming from I knew not where, I knew not when, and I had no idea how to protect myself. It strikes me—and I’m sorry to say it—that this is a way to create fear in the civilian population. It’s cover-your-ass time—but it isn’t even that specific… My government owes me more.”
Kirtley says that every presidential administration she has seen, regardless of party or ideology, inevitably succumbs to a culture of secrecy, at least to some extent; the second Bush administration, however, is an extraordinary case. What’s behind the current obsession with secrecy in the White House? “My sense is that they like the idea of the country being ruled by elites, whether they are their friends or business colleagues or ideological colleagues. And they really don’t like to mess with this democratic process, which includes oversight and participation and so forth. They’d rather just tell us all how it’s going to be. In that sense, September 11 was a huge gift to them because a large share of the American public was ready to accept this secrecy; they were spooked by the events of September 11, and eager to be reassured because they didn’t have much experience with terrorism before this.”
“That’s changed, of course,” Kirtley says, with a number of cases before the Supreme Court this term related to incommunicado detentions, and other cases wending their way through the judicial system. “But it took much longer than even I would have expected for the news media to start challenging these things constitutionally; historically, the press has been at the forefront of opening up court proceedings.
“At some point,” Kirtley predicts, “There’s going to be a day of reckoning, a day when the public says to the press, ‘Where were you guys? We counted on you and you didn’t deliver.’”
[On January 14, the Supreme Court refused to take up the question of whether or not the government acted illegally when it withheld the names and other details about hundreds of foreign detainees, upholding lower court rulings in the government’s favor. It has not yet considered the case that would compel Vice-President Dick Cheney to reveal records relating to the administration’s energy policies, though Justice Antonin Scalia did go duck hunting with Cheney last fall.]