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FOIA Exemption in the Homeland Security Act
R etired Admiral John Poindexter’s sprawling Internet spying plan, dubbed “Total Information Awareness,” garnered the lion’s share of attention in the run-up to the passage of the Homeland Security Act (HSA), but there’s another provision of the Act that could have profound implications for the public’s right to know.
Tucked into the legislation is Section 214, a new Freedom of Information Act exemption. It’s a small provision, yet it is indicative of the Bush administration’s predilection for secrecy. A recent editorial in the St. Petersburg Times claimed that the exemption threatened, “to reduce the public’s access to information in a way that could have serious implications for public safety.”
Here is how OMB Watch, a long-time Washington, DC-based government watchdog group, describes the exemption: “Information ‘related to the security of critical infrastructure or protected systems’ that companies voluntarily give to the new Department will now be automatically withheld from public disclosure. Moreover, the information cannot be used in civil suits and any Department employee providing such information will face criminal penalties, there- by undermining basic whistleblower protections.” The new bill “pre- empts state law to insure that the information is not disclosed by state openness laws.”
Homeland security promises to be a gold mine for technology and security companies. Microsoft, for example, recently named a new internal federal director of Homeland Security to work with the government on information technology issues. In the midst of this boom, privacy advocates are concerned about the ubiquity and reliability of many of the surveillance projects that are on the drawing boards or about to be put into action.
Under the Homeland Security Act, in order to qualify for the FOIA exemption, a company would inform the government about the critical infrastructure vulnerabilities of their project. As the St. Petersburg Times noted, “Industry could submit all sorts of information and call it critical infrastructure. That way, regulators, consumer groups, and the media would be precluded from seeing it, giving industries a tool to insulate themselves from a degree of government and public oversight. Industries, however, wouldn’t be released of their responsibility to submit regular safety and environmental reports to other regulatory agencies, and those would remain as accessible as they are today.”
David Sobel, general counsel at the Electronic Privacy Information Center (EPIC), said in a telephone interview that there is currently no accepted standards as to what types of projects could be covered by the critical infrastructure exemption. “No one knows just how broadly this will be applied,” he said. Sobel, who had testified several times at Congressional hearings on this subject, is particularly concerned about companies that would abuse the exemption.
Because of the exemption, privacy activists, researchers, and journalists will be left in the dark when a system fails or there are frequent snafus. In a recent interview with Chemical & Engineering News , Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy said: “We understand and acknowledge the need to keep some infrastructure information confidential, but we’re disappointed that this exemption is drawn so broadly.” The exemption “transfers enormous authority to industry and gives it unusual control over what information is allowed to enter the public domain,” he explained.
Senator Patrick Leahy (D-VT), the outgoing chairperson of the Senate Judiciary Committee, warn- ed that the exemption “guts the FOIA at the expense of our national security and public health and safety,” Secrecy News , a publication of the Federation of American Scientists, reported.
“This provision means that if a Federal regulatory agency needs to issue a regulation to protect the public from threats of harm, it cannot rely on any voluntarily submitted information—bringing the normal regulatory process to a grinding halt,” according to Sen. Leahy.
“Public health and law enforcement officials need the flexibility to decide how and when to warn or prepare the public in the safest, most effective manner. They should not have to get ‘sign off’ from a Fortune 500 company to do so.”
Not everyone thinks this exemption spells imminent doom for FOIA. Harry Hammitt, editor of Access Reports, an organization tracking access to government information for more than 25 years, told me via an e-mail exchange, that he wasn’t “sure the Homeland Security exemption will have as much practical effect as has been broadcast, but,” he added, “it clearly sets a very bad precedent and if it is used as an excuse to hide information submitted by businesses, then it clearly will have been a major minus.”
Hammitt said that the real problem is the issue of voluntary submission of information by corporations to the government: “I really think if the government needs this information it should require its submission,” he said, “not beg the private sector by promising confidentiality but not making the private sector liable in any way for not cooperating.”
As columnist, radio talk show host, and political organizer Jim Hightower pointed out in an Alternet column not long ago, “Secrecy…is now the prevailing ethos of the White House. There’s the secret government that Bush established; the constant refusal to release public records…; Bush’s attempts to hide his father’s presidential records and his own gubernatorial papers from public view; the secret war on terrorism, complete with secret arrests and closed military tribunals; the decision to hide the results of the Pentagon’s Star Wars missile tests; the refusal to make public the SEC investigative files on Bush’s slippery stock deal with Harken Energy Inc.”
Access Reports’ Hammitt said, “This Administration has the same basic distaste for open government as we saw during the Reagan years, but I think it has been much more aggressive in trying out new constitutional separation of powers arguments in attempts to basically make such laws go away.”
Ashcroft Retools FOIA
H ammitt’s characterization takes us back to October 2001 when, with only a few hard-core right-to-know advocates paying attention, Attorney General John Ashcroft issued a memorandum regarding FOIA policy. In preparation before the events of September 11, the memo reflected “a movement back to the policy of the Reagan administration,” observed Access Reports. The new policy superseded Attorney General Janet Reno’s 1993 memo, replacing her “foreseeable harm” test, which emphasized disclosure, with Ash- croft’s “sound legal basis” test that makes the withholding of records easier. While these changes seem like legalese blather—more subtle than substantive—they actually represent a significant change in policy.
Since its inception, the Freedom of Information Act “has been hailed as one of our greatest democratic reforms…allow[ing] ordinary citizens to hold the government accountable by requesting and scrutinizing public documents and records,” observed Ruth Rosen in a San Francisco Chronicle column. “This act allowed greater access to FBI records; access that had been previously severely proscribed. Without it, journalists, newspapers, historians and watchdog groups would never be able to keep the government honest,” she added.
A refresher: The Freedom of Information Act was enacted by Congress and signed by President Lyndon Johnson in 1966. But it wasn’t until seven years later when Congress, in the aftermath of the Nixon White House’s Watergate scandal, overrode President Ford’s veto and passed the Privacy Act of 1974. Ruth Rosen calls the FOIA “our post-Watergate reward…. [and] our national sunshine law, legislation that forces agencies to disclose their public records and documents.”
Although succeeding Attorneys General have issued memos reversing or modifying the policies of their predecessor, “there is no substantial empirical evidence that any of these memos worked a significant influence on implementation,” Access Reports notes. However, “They do set a tone by which the administration will be known.”
In the October 2001 memo, Attorney General Ashcroft recognizes, “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.” Then he raises the question of “other fundamental values” including “safeguarding our national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information, and not the least, preserving personal privacy.” In instructing agencies dealing with FOIA requests, Ashcroft pointed out, “any discretionary decision… to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial and personal privacy interests that could be implicated by disclosure of the information.”
Ashcroft assured agencies that should they decide to withhold information, they will be fully supported by the Department of Justice “unless they lack a sound legal basis or present an unwarranted risk on the ability of other agencies to protect important records.”
At a mid-March, 2002 conference in Philadelphia on computer- assisted reporting sponsored by Investigative Reporters and Editors, journalists pointed out that the number of FOIA request refusals is on the rise and the time it takes to hear from the government about a request has gotten longer. It’s not, John Giuffo writes in the Columbia Journalism Review , “just access to sensitive data about infrastructure and water supplies…that is being blocked.” Barbara Fought, a Freedom of Information law officer at Syracuse University, spoke during one of four panels convened to discuss the impact of the Ashcroft memo. She concluded, “We’re beginning to hear about a few problems, which I think signal a different tone with the Bush administration and the Attorney General.”
Several panelists felt that the Ashcroft FOIA memorandum was symptomatic of the Bush administration general bent toward greater secrecy. “The larger problem with the Bush administration is its attitude toward secrecy,” said panelist William Ferroggiaro, director of the Freedom of Information Project of the National Security Archive. Giuffo writes that Ferroggiaro “pointed to a number of recent actions by President Bush—his sealing of Ronald Reagan’s presidential records and the White House’s battle with the General Accounting Office, for example—as proof of a restrictive view of access to government information.”
Freedom of Information Act exemption in the Homeland Security Act
adds a layer of secrecy that will be difficult for right-to-know
activists, public interest groups, and journalists to penetrate.
There is no question that corporations could easily misuse the exemption
“to safeguard themselves from lawsuits,” says OMB Watch.
“When in doubt stamp critical infrastructure information on
the materials and ‘voluntarily’ send it to the new Department.
That way the company will not be held liable for danger caused to
Bill Berkowitz is a freelance writer covering conservative movements.
Z Magazine Archive
AnnouncementsLABOR - May 1 is May Day. Workers of the world will celebrate the 124th anniversary of International Worker’s Day. Born out of a call for an 8-hour workday in the United States, this day is an opportunity for all workers to show their solidarity with one another, as well as to renew the call for labor rights.
FARM CONFERENCE - The Farm Conference on Community and Sustainability will be held May 24-26 in Summertown, TN, in partnership with the Fellowship of Intentional Communities. Tour green homes, see sustainable food production, learn about solar installations, alternative education, midwifery, and more.
Contact: Douglas@thefarmcommunity.com; http://www.thefarmcommunity.com/.
PALESTINE - The Conference of the Palestinian Shatat in North American will be held June 3-5 in Vancouver. The conference will examine the future of the Palestinian liberation movement.
Contact: email@example.com; http://www.palestinianconference.org/.
LABOR - The Pacific Northwest Labor History Association’s 45th annual conference will be held May 3-5, in Portland, OR. This year’s theme is Labor Under Attack: Learning from the Past and Preparing for the Future. A call for presentations, workshops and papers is currently underway.
Contact: PNLHA, 27920 68th Ave. East, Graham, WA 98338; 206-406-2604; PNLHA1@aol.com; http://www3.telus.net.
MARIJUANA - On the first Saturday of May marijuana legalization activists will hold informational and educational events, rallies and marches in over 300 cities around the world.
ECONOMICS - The Union For Radical Political Economics will hold its 39th annual conference May 9-11 in New York City.
RECLAIM THE DREAM - The 2013 Poor People’s Campaign & March from Baltimore to Washington D.C. will be May 11. Communities, schools and unions interested in participating are encouraged to contact the Baltimore People’s Assembly.
Contact: 410-500-2168; 410-218-4835; BaltimorePeoplesAssembly@gmail.com; Southern Christian Leadership Conference of Baltimore and the Baltimore Peoples Power Assembly, 2011 N. Charles St., Baltimore, MD 21218.
MOTHER’S DAY - The 17th Annual Mother’s Day Walk For Peace will be May 12th, in Dorchester, MA. The walk began in 1996 for families who had lost children to violence. The day has become a way for thousands of people to financially support the work of the Louis Brown Peace Institute.
Contact: http://www.ldbpeaceinstitute.org/; http://mothersdaywalk4peace.org/.
NATO 5 - An International Week of Solidarity with the NATO 5 has been called for May 16-21. Supports call on supporters to raise awareness of the NATO 5 and support funds for the defendants on the one-year anniversary of their preemptive arrests.
Contact: firstname.lastname@example.org; https://nato5support.wordpress.com.
MOUNTAINTOP - The 2013 Mountain Justice Summer Activist Training Camp will be held May 19-27 in Damascus, VA. It will be a week of workshops, field trips to view Mountain Top Removal coal mines, direct actions, and service project.
FEMINIST SCI-FI - The feminist science fiction convention WisCon 37 is scheduled for May 24-27 in Madison, WI.
Contact: WisCon, ? SF3, PO Box 1624, Madison, WI 53701; email@example.com; http://www.wiscon.info/.
ANARCHY FEST - A month-long Festival of Anarchy is scheduled for May in Montreal. The festival includes The Montreal Anarchist Bookfair (May 19-20).
Contact: http://www.anarchistbookfair.ca/; http://www.radicalmontreal.com/.
LABOR - The International Labor Rights Forum will present: Down the Supply Chain, Driving Corporate Accountability, on May 22 in Washington, DC. The Labor Rights Awards Ceremony and Reception will honor pioneers in supply chain worker organizing, working solidarity and international labor rights policy.
MULTICULTURE - The 26th annual National Conference on Race & Ethnicity in American Higher Education (NCORE) will take place May 28-June 1, in New Orleans.
Contact: SWCHRS, 3200 Marshall Avenue, Suite 290, Norman, OK 73072; 405-325-3694; firstname.lastname@example.org; www.ncore.ou.edu.
MEDIA - The 2013 Alliance for Community Media Annual Conference will be held May 29-31, in San Francisco, CA. Participants will include educators, community leaders, media professionals, journalists, nonprofit leaders, policymakers and students.
RADIO - The 38th Annual Community Radio Conference is schedule for May 29-June 1, in San Francisco, CA, with discussions and workshops.
Contact: 1101 Pennsylvania Ave. NW, Suite 600, Washington, DC 20004; 202-756-2268; email@example.com; http://www.nfcb.org/.
BRADLEY MANNING - On June 1, a rally will be held at Fort Meade in support of Bradley Manning.
BIKES - Bikes Not Bombs is holding its 24th annual Bike-A-Thon and Green Roots Festival in Boston, MA on June 3, with several bike rides scheduled, music, exhibitors and more.
Contact: Bikes Not Bombs, 284 Amory St., Jamaica Plain, MA 02130; 617-522-0222; firstname.lastname@example.org; www.bikesnotbombs.org.
LEFT FORUM - The 2013 Left Forum will be held June 7-9, at Pace University in New York City.
Contact: 365 Fifth Avenue, CUNY Graduated Center, ? Sociology Dept., New York, NY 10016; http://www.leftforum.org/.
VEGAN FEST - Mad City Vegan Fest will be held in Madison, WI, June 8. The annual event features food, speakers, and exhibitors.
Contact: 122 State Street, Suite 405 B, Madison, WI 53701; email@example.com; http://veganfest.org/.
ADC CONFERENCE - The American-Arab Anti-Discrimination Committee (ADC) holds its annual conference June 13-16, in Washington, DC, with panel discussions and workshops on civil rights, media and other topics.
Contact: 1990 M Street, Suite 610, Washington, DC, 20036; 202-244-2990; firstname.lastname@example.org http://convention.adc.org/.
CUBA/SOCIALISM - A Cuban-North American Dialog on Socialist Renewal and Global Capitalist Crisis will be held in Havana, Cuba, June 16-30. There will be a 5 day Seminar at University of Havana, plus visits to a cooperative, urban garden, community development project, social research centers, and educational & medical institutions.
Contact: email@example.com; http://www.globaljusticecenter.org/.
NETROOTS - The 8th Annual Netroots Nation conference will take place June 20-23 in San Jose, CA. The event features panels, trainings, networking, screenings, and keynotes.
Contact: 164 Robles Way, #276, Vallejo, CA 94591; firstname.lastname@example.org; http://www.netrootsnation.org/.
MEDIA - The 15th annual Allied Media Conference will be held June 20-23, in Detroit.
Contact: 4126 Third Street, Detroit, MI 48201; http://alliedmedia.org/.
GRASSROOTS - The United We Stand Festival will be hosted by Free & Equal, June 22 in Little Rock, Arkansas. The festival aims to reform the electoral process throughout the U.S.
SOCIALISM - The Socialism 2013 Conference is scheduled for June 27-30 in Chicago, featuring talks and panel discussions.
Contact: email@example.com; http://www.socialismconference.org.
LITERACY - The National Association for Media Literacy Education (NAMLE) will hold its conference July 12-13 in Los Angeles under the heading, Intersections: Teaching and Learning Across Media.
Contact: 10 Laurel Hill Drive, Cherry Hill, NJ 08003; http://namle.net/conference/.
IWW - The North American Work People’s College will take place July 12-16 at Mesaba Co-op Park in northern Minnesota. The event will bring together Wobblies from branches across the continent to learn new skills and build One Big Union.
PEACESTOCK - On July 13th, the 11th Annual Peacestock: A Gathering for Peace, will take place at Windbeam Farm in Hager City, WI. The event is a mixture of music, speakers and community for peace. Sponsored by Veterans for Peace.
Contact: Bill Habedank, 1913 Grandview Ave., Red Wing, MN 55066; 651-388-7733; firstname.lastname@example.org; http://www.peacestockvfp.org.
CHILDREN’S DEFENSE - July 15-19, join clergy, seminarians, Christian educators, young adult leaders and other faith-based advocates for children at CDF Haley Farm in Clinton, Tennessee, for five days of spiritual renewal, networking, movement building workshops, and continuing education about the urgent needs of children at the 19th annual Proctor Institute for Child Advocacy Ministry.
Contact: email@example.com; http://www.childrensdefense.org.
ACTIVIST CAMP - Youth Empowered Action (YEA) Camp will have sessions in July and August in Ben Lomond, CA; Portland, OR; Charlton, MA. YEA Camp is designed for activists 12-17 years old who want to make a difference in the world.
Contact: firstname.lastname@example.org; http://yeacamp.org/.
LA RAZA - The annual National Council of La Raza (NCLR) Conference is scheduled for July 18-19 in New Orleans, with workshops, presentations and panel discussions.
Contact: NCLR Headquarters Office, Raul Yzaguirre Building, 1126 16th Street, NW, Washington, DC 20036; 202-785-1670; www.nclr.org.
LABOR - The Eastern Conference For Workplace Democracy: Growing Our Cooperatives, Growing Our Communities, will be held at Drexel University in Philadelphia, PA, July 26-28.
Contact: email@example.com; http://east.usworker.coop/.
WOMEN/LYNNE STEWART- Radical Women is asking for support letters and cards to be sent to Lynne Stewart. Stewart is a civil rights attorney and political prisoner who is currently in jail. She has breast cancer and authorities have denied her request for transfer from her Texas prison to the New York City hospital where she received medical attention during a prior bout of breast cancer. Send messages and cards to: Lynne Stewart 53504-054, Federal Medical Center Carswell, P.O. Box 27137, Fort Worth, TX 76127.
Contact: 747 Polk Street, San Francisco, CA 94109; 415-864-1278; RadicalWomenUS@gmail.com; http://lynnestewart.org/; http://www.radicalwomen.org/.
HAITI/WOMEN - Haiti’s government is considering a legal reform measure that would prohibit and punish all sexual assault, including marital rape. MADRE and the International Campaign to Stop Rape & Gender Violence in Conflict are launching a petition to raise international support for this push to address violence against women in Haiti.
Contact: 121 West 27th Street, #301, New York, NY 10001; 212-627-0444; firstname.lastname@example.org; http://www.madre.org.
SYRIA/MIDDLE EAST - The Middle East Children’s Alliance (MECA) is currently seeking funds to assist more than 200,000 refugees fleeing violence in Syria.
FOLK FESTIVAL - The Falcon Ridge Folk Festival will be held August 2-4, in the Berkshires, NY.
Contact: http://www.falconridgefolk.com/; email@example.com.
WAR RESISTERS - The War Resisters League will hold its 90th anniversary conference, Revolutionary Nonviolence: Building Bridges Across Generations and Communities, August 1-4, at Georgetown University. The event will focus on the U.S.’ long history of antimilitarism.
Contact: 339 Lafayette Street, New York, NY 10012; 212-228-0450; firstname.lastname@example.org; http://www.warresisters.org.
POPULAR ECONOMICS - The Center for Popular Economics is holding its 2013 Summer Institute August 4-9 at Hampshire College in Amherst, MA. No background in economics is needed for this intensive training. This year’s theme is, The Care Economy: Building a Just Economy with a Heart.
Contact: Center for Popular Economics, PO Box 785 Amherst, MA 01004; 413-545-0743; email@example.com; www.populareconomics.org.
VETERANS - Veterans for Peace is holding the 28th annual convention August 6-11 in Madison, WI. This year’s theme is, Power To The Peaceful.
DEMOCRACY - The Democracy Convention will take place August 7-11 in Madison, WI. The convention brings together nine conferences including topics such as media, education, defense, race, environment and others.
MEN - The 38th National Conference on Men & Masculinity: Forging Justice: Creating Safe, Equal and Accountable Communities, presented in partnership with HAVEN, will be held in Detroit, MI, August 8-10.
Contact: firstname.lastname@example.org; http://www.nomas.org/.
OCCUPY - An Occupy National Gathering will be held in Kalamazoo, MI, August 21-25.
Contact: email@example.com; http://occupynationalgathering.net/.
COMMUNITIES - The Communities Conference is a networking and learning opportunity for co-operative or communal lifestyles, with workshops, events and entertainment; scheduled for August 30-September 2 at the Twin Oaks Community in Louisa, Virginia.
LABOR DAY - The 29th annual Bread and Roses Festival, a celebration of the ethnic diversity and labor history of Lawrence, MA, will be held September 2, in honor of the 1912 Bread and Roses Strike. There will be music, dance, poetry, drama, ethnic food, historical demonstrations, walking & trolley tours.
Contact: PO Box 1137, Lawrence, MA 01842; 978-794-1655; http://www.breadandrosesheritage.org/.
OCCUPY WALL STREET - September 17 is the two-year anniversary of the Occupy Wall Street movement. Events are planned in New York City and worldwide.
TEACHERS - The 13th Annual Conference, “Teaching for Social Justice: The Politics of Pedagogy,” will be held October 12 in San Francisco, CA. The free event features workshops, resources, and free childcare.
Contact: 415-676-7844; firstname.lastname@example.org; http://www.t4sj.org/.
HAITI - International Action, which brings clean water and chlorinators to Haiti, seeks office space capable of housing up to six people and their office equipment.
Contact: Zach Bremer, Zbrehmer@haitiwater.org; 202-488-0735; http://www.haitiwater.org/.
MEDIA - The Union for Democratic Communications and Project Censored are sponsoring a joint conference on media democracy, media activism and social justice to be held November 1-3 at the University of San Francisco. Proposals for presentations, workshops and panels from activists and critical scholars are invited.