What we don't know

Just how pervasive is the Bush administration's spying program? Hard to tell — the documents are secret. And that's just the beginning.

By A.C. Thompson, Steven T. Jones, and G.W. Schulz

› news@sfbg.com

Things have flipped in this country. The United States was founded on principles of limited government power, where even criminals had constitutionally protected rights to due legal process, to confront their accusers, to speak out, and to demand documents from the government.

Citizens elect their commander in chief, mayors, sheriffs, and prosecutors, and, in theory, they have a right to review every document that every level of government produces (except those involving military secrets or other narrowly written exemptions).

Yet the most basic tenet that underlies all these freedoms, that the people have a right to know what's being done in their names, is under an unprecedented attack. If information is power — and a good argument can be made that it is — then power has in recent years been steadily transferred from the people to the federal government.

Never before has the government known so much about so many of us. The technological capacity of the National Security Agency (NSA) and other government bodies that gather information is at its peak, while the legal safeguards that limit their spying are at the weakest point they've been at since they were adopted in the 1970s.

At the same time, local law-enforcement agencies are being increasingly co-opted into the federal government's so-called war on terrorism, infiltrating even peaceful antiwar and civil rights groups in a fashion similar to the COINTELPRO probes that came to light in the early 1970s.

We know about these expansions of the police state only because of rare whistle-blowers in government and a few big journalistic breakthroughs. The federal government has put its full weight into closing that door and making sure we learn as little as possible about the details and scope of these programs.

So at the same time that the federal government has taken steps to increase its information about all of us, it has taken unprecedented steps to close off what we can know about it. The Bush administration has quietly reclassified tens of thousands of once public documents, adopted a presumption of secrecy in responding to requests under the Freedom of Information Act, and even adopted policies limiting the public's right to information about polluters and other private-sector entities.

It's a trend we were clearly and sternly warned about by founding father James Madison, whose birthday the Guardian celebrates every year with this freedom of information issue and our support of the Society of Professional Journalists' James Madison Awards.

"Knowledge will forever govern ignorance," Madison once wrote, "and a people who mean to be their own governors must arm themselves with the power which knowledge gives."

POLICING THE COPS

Given all the secrecy in government these days, it's impossible to figure out just what the federal, state, and local authorities are doing, especially when it comes to law enforcement and anything that comes anywhere near the topic of "homeland security."

Still, there's evidence that surveillance of political dissidents has become widespread and systemic.

Among the tools used to keep tabs on fringe groups are the Joint Terrorism Task Forces, which team FBI agents with local cops. How do those task forces work, and what do they do? That's secret. When we asked the San Francisco Police Department for any documents about the interactions of the local task force and the San Francisco Police Department, we ran right into a bureaucratic stonewall: The single piece of paper the department would release was a vague memorandum of understanding between the SFPD and the FBI.

That means we have no way of knowing whom the group is scrutinizing, or what, if any, rules it has to abide by. All we can tell from the document is that the bureau is devoting at least 27 agents to the task force, while the SFPD has assigned one investigator from the department's Intelligence Unit.

But in other locales, civil libertarians have been able to pry loose some intriguing nuggets from the task forces. Judging from the small pile of documents the American Civil Liberties Union (ACLU) has been able to gather, various task forces are interested in the American-Arab Anti-Discrimination Committee, Greenpeace, People for the Ethical Treatment of Animals, and the Catholic Worker movement.

From a pair of 2001 reports, it's clear the Los Angeles–area task force had a source infiltrate a protest against the national missile-defense system at Vandenberg Air Force Base, near Santa Barbara. The FBI feared a successful protest could cost as much as a million dollars a day and "cause serious damage to the public image" of the Defense Department.

A heavily redacted 2002 report from the same task force shows the law enforcers spied on a conference of Arab Americans at Stanford University. During 2003 a San Diego–area task force tracked the movements of PETA activists, worried the group would mess with the elephant enclosure at the San Diego Zoo. And the San Jose Mercury News's Dion Nissenbaum is being awarded a James Madison Award for uncovering documents showing the California National Guard was gathering intelligence information on antiwar groups last year.

In conjunction with us, the local branch of the ACLU is now going after info on the Defense Department's spying program, known by the Tom Clancy–ish acronym TALON. From the one document that's leaked out so far, it seems the Pentagon has been monitoring at least two local groups: Berkeley Stop the War Coalition and UC Santa Cruz Students Against War.

"We want to know what files have been opened up on these students and student groups and whom the information has been shared with," Mark Schlosberg, a police practices expert with the Northern California ACLU, told us. "We do know that the Defense Department has conceded that there are things in the TALON database that shouldn't be there."

The ACLU and this paper filed suit in federal court March 7, asking the Pentagon to expedite its processing of that Freedom of Information Act request, which was originally made in early February.

This newspaper isn't the only one frustrated by government stonewalls. As a matter of official policy, the Bush administration has blunted the people's FOIA tool.

STATE OF THE FOIA

Forty years after president Lyndon Johnson signed the federal Freedom of Information Act, the landmark law — which allows the average person to get his or her hands on a wide variety of government documents — has never been more battered and fragile.

The reasoning behind the FOIA is simple: The public has a right to know what's being done with its tax dollars. In theory the law allows the populace to get copies of everything from internal government memos to investigative reports to the e-mails of public officials to computer databases.

Muckraking journalists and activist groups use the law extensively, and many of the biggest journalistic scoops of the past four decades can be traced back to documents obtained using the FOIA.

But the law, of course, includes exceptions for documents whose entry into the broader universe might threaten public safety or national security — and those exceptions have gotten broader and broader during the war-ridden rule of President George W. Bush.

A study released late last year by the Coalition of Journalists for Open Government, a Beltway activist outfit, is edifying. According to the report, in 2004 the Feds slapped down FOIA requests 22 percent more frequently than they did in 2000.

"It's become the default position within the government to withhold information," Pete Weitzel, coordinator for the coalition, says.

The Bush administration's war on the FOIA can be traced to a pair of decisions. First, one month after 9/11, then–Attorney General John Ashcroft issued a memo encouraging all federal departments and agencies to lean toward the side of secrecy when it came to the FOIA.

He began his directive trumpeting the virtues of the law. "As you know, the Department of Justice and this Administration are committed to full compliance with the Freedom of Information Act (FOIA)," Ashcroft wrote. "It is only through a well-informed citizenry that the leaders of our nation remain accountable to the governed and the American people can be assured that neither fraud nor government waste is concealed."

But, he went on: "The Department of Justice and this Administration are equally committed to protecting other fundamental values that are held by our society. Among them are safeguarding our national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal privacy."

Ashcroft then proceeded to lay out a particular loophole in FOIA agencies could use to keep from disclosing information and instructed them to lean toward keeping information confidential.

"You can be assured that the Department of Justice will defend your decisions," the attorney general wrote.

Ashcroft's stance, Weitzel says, "is totally contrary to the position of the previous attorney general [Janet Reno]."

Another player in the gutting of the FOIA is White House chief of staff Andrew Card, who in 2002 sent agency bosses a memo titled "Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security."

The gist of the memo? Government officials should consider stamping "sensitive but unclassified" on "information related to America's homeland security" — even if hadn't previously been secret. The "sensitive but unclassified" designation ensures the material will never see the light of day.

Weitzel thinks there's a fear factor for bureaucrats handling FOIA requests. "There are sanctions for giving out information your bosses don't want released," he says, noting that there are no rewards for turning over unflattering documents to nosy journalists or pesky activists.

NO LIMITS ON WIRETAPPING

One of most notable and disturbing recent peeks behind the curtain of government secrecy came in December, when the New York Times reported that in 2001 Bush authorized the National Security Agency (NSA) to intercept the telephone calls, e-mails, letters, and other communications of American citizens without obtaining required court warrants, in clear violation of the law (particularly the Foreign Intelligence Surveillance Act [FISA]) and his own prior public statements.

Many journalists, constitutional scholars, Democrats, and other concerned citizens rightly criticized the wiretaps (see "The Case for Impeachment," 1/25/06). Yet within days of the revelation, Bush administration officials dropped their stonewalling and denials, not only admitting the information was true but also arguing that the surveillance was legal, necessary, and would continue.

Many noted scholars and believers in open government called it a constitutional crisis. But for most of official Washington and the mainstream media, the incident seemed to pass as just one more in a long line of political scandals.

Complicating matters was the complicity — or at least the passivity — of some top Democrats. It turns out San Francisco's own Rep. Nancy Pelosi, the top House Democrat, knew about the illegal behavior for years and did nothing but privately raise her objections (see "Pelosi Knew about Warrantless Spying," 1/25/06).

Yet there are many who acted, and who continue to sound the alarm that this isn't just another political scandal but an alarming indication of just how secretive and invasive our government has become. The ACLU in January filed a lawsuit on behalf of journalists, authors, scholars, and activist groups demanding an end to the program and more information on who was targeted.

That group has been supported by others, including MoveOn.org, Raging Grannies, and Code Pink, all of whom staged a rally in San Francisco Feb. 22 to protest and raise awareness. Jeffrey Mittman, who is coordinating the campaign for the Northern California ACLU, told the crowd in clear terms the program is illegal, that Foreign Intelligence Surveillance Act warrants have been easy to obtain, and that the only point of the program can be to expand government power and reduce oversight — and that Bush officials are telling lies to hide those facts.

In an interview with us, Mittman said he felt the ACLU's message was starting to get through. "I think we're beginning to see some critical mass on this issue," he told us. "As people think about it more and more, the message is getting through. This is not about liberal lefties; it's about what this country stands for."

Pelosi issued a statement for the event that makes a similar point, albeit one tempered by concerns about not appearing weak on national defense. "As we protect and defend the American people, we must not lose sight of our duty to protect and defend the Constitution and our civil liberties."

The crowd reacted with hostility to the statement, which mildly condemned the Bush administration's behavior while allowing for the possibility of giving them great surveillance authority. "It's not enough for Nancy Pelosi to give us the boilerplate to cover her ass," Code Pink's Janet Weil told the crowd, drawing a round of applause.

A handful of other Democrats in the House have not been as willing to give ground as Pelosi has (her office has not returned our repeated calls for further comment). Leading the charge has been Rep. John Conyers of Michigan, who convened a Jan. 20 hearing on the warrantless spying that was fascinating.

"There can be little doubt that we're in a constitutional crisis that threatens the system of checks and balances that have preserved our fundamental freedoms for over 200 years. There's no better illustration of that crisis than the fact that the president of the United States is violating our nation's laws by authorizing warrantless surveillance on United States citizens," Conyers said during his opening statement.

Among those called as witnesses was James Bamford, a journalist and author who was one of 14 parties to the ACLU suit that was filed a few days earlier. Bamford penned two of the most illuminating books ever written about the NSA, The Puzzle Place and Body of Secrets — the first an exposé for which he was threatened with prosecution, the second (published in 2001) a defense of accountability improvements at the NSA for which he was lauded by the agency.

Yet Bamford now argues that the revelations of warrantless spying are a return to the darkest days of NSA excesses that threatens the work of journalists like him (who need to be free to speak to sources in other countries who might be construed as having terrorist ties) and this country's most cherished ideals.

In his testimony to the Conyers committee, Bamford talked about how the long record of domestic surveillance excesses (from COINTELPRO to Watergate) that came to light in the 1970s were investigated by a committee headed by Sen. Frank Church, who said, "If this government ever became a tyranny, if a dictator ever took charge of this country, the technological capability that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how private it was done, is within the reach of the government to know. Such is the capability of this technology."

As a result of those findings, Congress passed FISA, explicitly stating that the president cannot order wiretaps, even in a time of war, for more than 15 days without approval from the court that the law established. In the time since FISA passed, the power of the NSA to collect and analyze information has increased tremendously.

"Today, the NSA is the largest intelligence agency on earth and by far the most dangerous if not subjected to strict laws and oversight. It has the ability to virtually get into someone's mind," Bamford told the committee.

Yet the position of the Bush administration is that it may listen to anyone who communicates with anyone suspected of having ties to terrorists — and it will not provide a definition of "ties to terrorists" (or even "terrorists" for that matter) or any information on those it has targeted.

So while the government has gained the ability to obtain the "total information awareness" it once sought, the public's right to learn about its government has been severely curtailed.

RECLASSIFIED DOCUMENTS

Helene Whitson worked through nearly four decades and a dozen presidencies as an archivist for San Francisco State University.

Excitement fills her voice when she talks about history's paper trail. She guessed that the school has around 400,000 local, state, and federal government documents.

"When people find out what archivists do, they want my job," she said. "It's so unique. It's the best job. You learn so much."

So when the New York Times and the National Security Archives at George Washington University disclosed in late February that a secret federal program has for six years reclassified approximately 9,500 documents and 55,500 pages of previously available federal records, Whitson says she was appalled.

The National Security Archives, founded in 1985 by a group of journalists and scholars, maintains a centralized repository of about two million pages of material declassified under the FOIA. The organization, with the help of a visiting fellow named Matthew Aid, discovered that since at least 1999, the Pentagon and a number of US intelligence agencies have ordered the reclassification of tens of thousands of pages of government documents, some of which seemed to do nothing more than reveal ineptitude on the part of defense and intelligence officials. One document, for instance, showed that prewar intelligence had badly underestimated China's planned involvement in the Korean War.

"This episode reveals an enduring culture of secrecy in the US government and highlights the need to establish measures prohibiting future secret reclassification programs," Aid said in the National Security Archives report.

Since the story broke and historians lashed out bitterly, the federal government's head archivist Allen Weinstein, demanded a moratorium on reclassifications while the Information Security Oversight Office conducts an audit. The uproar surfaced as the Bush administration faces ongoing criticism over its penchant for secrecy and the legal limits of executive privilege.

Whitson said that, unfortunately, she's repeatedly witnessed the cycle of fear that so often leads to the suppression of free information. She said general archival access seemed to taper off during the Reagan administration. But as the National Security Archives noted in its report, an executive order under President Clinton instituted a bulk declassification of historical federal records that the Central Intelligence Agency and other agencies later complained included still sensitive information. The report states that while the program began in the late '90s, since President George W. Bush took office, the scope of the reclassification program and the withdrawal of government documents from public view has grown quickly on his watch.

Whitson said archivists often worry they'll be held responsible for revealing something sensitive or classified. But her greatest concern, she said, is that historical documents, classified or not, are properly maintained in lasting formats.

"It's scary to be an archivist, because you just don't know," she said. "You have the power to change history. They're not allowing (archivists) the full range of documents to make the right decisions."

SHIELDING POLLUTERS FROM SCRUTINY

The new penchant for secrecy has even spilled over into the private sector, which the White House is helping to shield from public scrutiny. Capitol watchers are tracking a disturbing trend: The US Environmental Protection Agency is getting softer and softer on polluting industries, allowing them to report less and less information about their use of hazardous chemicals to the ecowatchdog.

At issue is the EPA's Toxic Release Inventory, a massive data compendium cataloguing the use of gnarly chemicals on a factory-by-factory basis. Since 1988, the TRI, which tracks roughly 650 chemicals at thousands of industrial sites, has been a key tool for community leaders, greens, and journalists.

Thanks to the TRI, Sean Moulton, an expert on the program, says, "ordinary citizens feel capable of calling up a company and saying, 'I have concerns about the chemicals you're using. I'm talking to my neighbors about it." "

Moulton's group, OMB Watch, and Environmental Defense have all built Web sites around the TRI, allowing anybody surfing the Web to learn how much filth the neighborhood plastics plant or metal-plating shop is belching into the sky.

But the Bush crew seems to have little love for the TRI, which is compiled annually. In 2004 the official report, which had previously run hundreds of pages, was chopped down to six pages.

Now the EPA is aiming to further hack at the TRI. In October 2005 the agency announced plans that would exempt about 1,000 facilities from the TRI program and reduce the amount of data thousands of other businesses are required to submit. The program would also become biannual rather than yearly.

"It feels to me like they're trying to downgrade the entire program," Moulton says.

The EPA's explanation? The agency says the planned changes to the TRI would reduce the "burden" on businesses by cutting down on the amount of paperwork they have to compile and would save the EPA roughly $2 million a year in administrative costs.

Industry has already had some success at reducing the amount of information available about chemicals. In May 2005 the EPA lost an appeals court ruling over methyl ethyl ketone, a solvent used in lacquers, inks, oils, and paint removers.

The decision, prompted by a suit brought by chemical manufacturers, forced the EPA to yank the solvent from its list of toxic chemicals, even though it's a proven precursor to atmospheric smog, which has well-documented human health effects. The chemical has also been linked to nervous system problems.

After a win in the lower court and a loss in the appellate court, the Bush administration chose to quietly give up the fight rather than appealing the case to the Supreme Court.

Moulton thinks the EPA wimped out. "As far as I can tell, there's a lack of dedication from the government to defend this program. It was a lackluster effort. As soon as they lost, they walked away."

When government shields information it considers vital to national security, some might be tempted to assume it has good reason. But when secrecy becomes official policy in a broad range of areas, those who inherit Madison's legacy should be concerned that the people's power is being usurped.

Because, as he put it, "The truth is that all men having power ought to be mistrusted." *