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Commentary

Rewriting History

By Marjorie Heins

One of the quotes we see most often in debates about government secrecy comes from James Madison, who was also, of course, the author of the First Amendment. "A popular government without popular information, or means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both," Madison wrote. "Knowledge will forever govern ignorance, and a people who mean to be their own Governors must arm themselves with the power which knowledge gives."1

I was reminded of Madison's elegant truism when I read a few weeks ago that, as part of a plea bargain agreement, Guantanamo prisoner David Hicks stated that he had "never been illegally treated" while a captive. He went on to recant his earlier claims that he had been beaten during detention; he also agreed not to sue the government over his treatment, and "not to communicate in any way with the media" for a year. In exchange, Hicks, who was charged with being an Al Qaeda recruit, was sentenced to serve just nine additional months in custody, mostly back home in Australia.2

Hicks's recantation of his charges of abuse was disturbingly reminiscent of the forced confessions and other manipulations of truth that characterized the Soviet Union under Joseph Stalin. Stalin was notorious, if hardly unique among dictators, in controlling the press and rewriting history. His rival Trotsky, for example, was literally airbrushed out of the Russian Revolution during Stalin's reign. Similarly, it seems, prisoner allegations of torture at Guantanamo will be airbrushed out of history if the U.S. government has its way.

The Bush Administration is not unique in its desire to suppress unfavorable information and control the writing of history. (Recall the battle over the Pentagon Papers during the Nixon years, for example.) But its drive to bury truthful facts - not only in national security matters but in the areas of health and science3 - have been particularly sweeping.

The Bush Justice Department has, for example, made extensive use of the "state secrets" doctrine to defeat potentially embarrassing lawsuits, such as the one brought by whistleblower Sibel Edmonds to challenge her firing by the FBI after she reported security breaches and potential espionage within the agency. The case was dismissed because the government argued that defending it would require the revelation of national security secrets, and the courts unquestioningly accepted the argument.4 We will probably never know what "secrets" the government really wanted to hide by preventing Edmonds' suit from going forward.

The government doesn't always win its demands for secrecy. In 2004 and 2005, two courts considered challenges to the gag order provisions of "National Security Letters" (NSLs), which the FBI uses by the truckload to search personal records without the usual Fourth Amendment prerequisites for getting a warrant. The "USA PATRIOT" Act, passed quickly by Congress after September 11, 2001, expanded the FBI's power to use NSLs if they are "relevant" to a terrorism or intelligence investigation. NSLs prohibit the recipient (the keeper of the records) from disclosing the fact of their existence.5

In the two court challenges, the judges ruled that the NSLs' automatic gag orders violate the First Amendment. One of them explained:

The self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction. A categorical and uncritical extension of non-disclosure may become the cover for spurious ends that government may then deem too inconvenient, inexpedient, merely embarrassing, or even illicit to ever expose to the light of day. At that point, secrecy's protective shield may serve not as much to secure a safe country as simply to save face.6

Similarly, when these cases got up to the court of appeals, one judge, Richard Cardamone, said of the gag orders: "A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens. Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence."7

Gags on government scientists, over-"classification" of government documents, and claims that secrecy is necessary for national security are not the only areas where the suppression of information creates a problem for democracy. Even in ordinary civil litigation, defendants often demand gag orders as a condition of settling a case. Companies accused of selling toxic products, for example, generally don't want the amount of money damages they have paid in a settlement to become public, and so often insist on secrecy as one of the settlement terms. The result is that we the people are deprived of important information about the extent of corporate misconduct.

I remember a civil rights case in Boston in the 1980s, which resulted in a settlement of almost $100,000 to female prisoners who had been strip-searched during a prison raid; an assistant district attorney who had planned the raid was one of the defendants. In exchange for the settlement money, the plaintiffs and their lawyers promised not to reveal the amount of damages the government had paid. When this assistant district attorney was later nominated for a judgeship and his qualifications were in issue, the important fact that his misconduct had led to a large payment of money in settlement of civil rights claims against him could not be disclosed.

Sometimes, of course, an argument for confidentiality is legitimate. When a lawsuit involves private information - medical records in a malpractice case, for example, or other personal information in a divorce case - there are good grounds for secrecy. Sometimes the right to privacy does trump the First Amendment. And claims of national security are also sometimes legitimate - the usual example is the need to keep secret information about the movement of troops in wartime.

But the amount of information that courts and other agencies of government keep secret is excessive. Too often, the First Amendment need for openness - for the information that citizens need to make decisions in a democracy - is forgotten. Courts often approve settlements in cases that include gag orders without considering the public's interest in information. Plaintiffs who have been harmed and need the settlement money acquiesce in demands for silence, and judges may feel hard-pressed to scuttle the deal. Judges may feel even more powerless when it comes to government claims that secrecy is needed. They certainly don't want to be accused of putting the national security at risk by second-guessing the claims of the executive branch.

They also may be concerned that the FBI or other agencies will simply ignore judicial orders requiring openness. As another of the Founding Fathers, Alexander Hamilton, famously observed, courts are "the least dangerous" branch of government because they have no independent means of enforcing their decisions: they wield neither the power of the sword nor the power of the purse.8

Clearly, we can't depend on judges alone to put the brakes on an overly secretive and gag order-happy government. Only an outraged populace can give judges the necessary support for openness and executive officers the necessary message that it, not secrecy, should be the default setting for democracy. And only a vigilant press can assure that the public knows how much information is kept secret, and how undue secrecy can distort both democracy and history.

April 10, 2007

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For more information, and ways to get involved, see OpentheGovernment.org and Coalition of Journalists for Open Government.

NOTES

1. James Madison, Letter to W. T. Berry, Aug. 4, 1822, in Letters and Other Writings of James Madison (Philip R. Fendall, ed., Lippincott, 1865), vol. III, p. 276.

2. William Glaberson, "Australian to Serve Nine Months in Terrorism Case," New York Times, March 31, 2007, p. A6.

3. For a good summary of the Bush Administration's rewriting of scientific reports and gagging of scientists, see National Coalition Against Censorship, Political Science (March 12, 2007). See also FEPP's commentary, "The Attack on Science."

4. Edmonds v. Department of Justice, 323 F. Supp.2d 65 (D.D.C. 2004), affirmed in an unpublished opinion (D.C. Cir. 2005). See also Edmonds' website at http://www.justacitizen.com/.

5. For more on the background of NSLs and the litigation challenging them, see FEPP's Fact Sheet on Political Dissent and Censorship.

6. Doe v. Ashcroft, 334 F. Supp.2d 471, 519-52 (S.D.N.Y 2004), vacated and remanded on First Amendment issue, 449 F.3d 415 (2d Cir. 2006).

7. Doe v. Gonzales, 449 F.3d 415, 422 (2d Cir. 2006) (Cardamone, J., concurring). Because of 2006 amendments to the PATRIOT Act, one of the cases was "moot" by the time it got to the court of appeals. The other one was sent back to the lower court for further proceedings. See FEPP's Fact Sheet on Political Dissent and Censorship for details.

8. The Federalist Papers #78 (Mentor, 1961), p. 465.


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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