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									                               Sworn
                                 to Secrecy
                                 “Knowledge will forever govern
                            ignorance, and a people who mean to be
                          their own governors, must arm themselves
                      with the power knowledge gives. ”
                       --James Madison, 1822

    The Bush administration has moved to broadly restrict information
that might interfere with its political agenda and point to stronger
health, safety and environmental protections.
    Perhaps most significant for its scope, Attorney General John
Ashcroft has reversed past policy under the Freedom of Information
Act, and in essence instructed federal agencies to withhold information
whenever possible. Meanwhile, the administration has cracked down
on government whistleblowers and continually thumbed its nose at
Congress – for example, refusing to turn over documents related to the
corporate-dominated Cheney energy task force.
    Sept. 11 has also regularly been invoked to advance the cause
of secrecy. In particular, the administration has withheld information
on “critical infrastructure” and power companies, and removed tens
of thousands of documents from the web, including information on
chemical facilities. While the specific reasons for these restrictions are
murky at best, the one clear effect has been to shield the administration
and its corporate allies from public scrutiny.
                                                Sworn
                                                    to Secrecy



     Turning FOIA                                      ‘discretionary disclosure’ of information
            on its Head                                to the need to safeguard institutional,
          On Oct. 12, 2001, Ashcroft issued a          commercial, and personal privacy
      memorandum1 that urges federal agencies          interests.”3 In other words, we are moving
      to exercise greater caution in disclosing        from disclosure where possible to secrecy
      information requested under the Freedom of       where possible.
      Information Act, which is a primary tool for         As viewed by EPA’s general counsel office,
      obtaining health, safety and environmental       “[I]n order to justify withholding a record,
      information, and much more.                      the agency no longer needs to be able to
          The memo affirms the Justice                 articulate a foreseeable harm that will befall
      Department’s commitment to “full                 us if the record is released.”4 This means that
      compliance with the Freedom of Information       not only is the agency less likely to disclose, it
      Act,” but then immediately states it is          won’t even provide an explanation for why it
      “equally committed to protecting other           is withholding.
      fundamental values that are held by our
      society. Among them are safeguarding            Auto Safety
      our national security, enhancing the                 In one of the most egregious examples,
      effectiveness of our law enforcement             the Department of Transportation is
      agencies, protecting sensitive business          withholding “early warning” data about
      information and, not least, preserving           auto safety defects, including warranty
      personal privacy.”                               claim information, auto dealer reports,
          This new policy supersedes a 1993            consumer complaints, and data on child
      memorandum from then-Attorney General            restraint systems and tires. Congress
      Janet Reno that promoted disclosure of           required reporting of this information in
      government information under FOIA unless it      response to the 2000 Firestone Tire debacle
      was “reasonably foreseeable that disclosure      (in which faulty tires resulted in 271 deaths),
      would be harmful.” This standard of              potentially creating a powerful tool for
      “foreseeable harm” is dropped in the Ashcroft    the public to hold manufacturers and the
      memo. Instead, Ashcroft advises, “When you       government accountable.
      carefully consider FOIA requests and decide          Unfortunately, in July 2003, DOT
      to withhold records, in whole or in part, you    issued a rule that claimed disclosure could
      can be assured that the Department of Justice    “cause substantial competitive harm” – an
      will defend your decisions unless they lack a    allowable exemption under FOIA – even
      sound legal basis...”                            though similar defect information has been
          In a number of cases, agencies have          routinely made public before.
      expanded on the Ashcroft memo, affirming
      that the benefit of doubt no longer goes to     Fox In the Henhouse
      disclosure, according to an audit covering      Jacqueline Glassman, NHTSA’s chief counsel
      33 federal departments and agencies by                Glassman spearheaded the decision
      the National Security Archive,2 which files       to withhold early-warning auto safety
      thousands of FOIA requests annually.              information from the public. Prior to her
          The Department of Interior, for instance,     appointment in 2002, Glassman was senior
      circulated the Ashcroft memo in an email          counsel for the DaimlerChrysler Corporation,
      entitled, “News Flash – Foreseeable Harm          where she spent seven years. The Alliance for
      is Abolished.” Interior later developed           Automobile Manufacturers, which represents
      implementing guidance that stated, “We            DaimlerChrysler, as well as eight other
      wish to emphasize that the shift related          manufacturers, strongly opposed disclosure of
      to release of information under the               the early-warning information.
      FOIA has moved from a presumption of


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     “The DOT is trying to slip a vast                   The Bush administration appealed the
 exemption to the Freedom of Information             circuit court’s decision to the Supreme
 Act in the back door,” said Amanda Frost, an        Court, which accepted the case. Yet just days
 attorney with Public Citizen, which filed suit      before oral arguments were set to begin,
 in March 2004 to force the administration to        Congress approved an appropriations rider
 make the information available. “The agency         that prohibits the ATF from using any funds
 has failed to show how disclosure would harm        to comply with FOIA requests for the records
 manufacturers, but this exemption would             in question. In response, the Supreme Court
 surely harm consumers.”                             vacated the decision and remanded the case,
                                                     instructing the Seventh Circuit to reconsider in
Gun Safety                                           light of Congress’ action.
     The Bush administration has also fought
 a legal challenge by the city of Chicago to
 obtain records on gun purchases under              Stonewalling
 FOIA. Chicago requested these records
                                                            Congress
 from the Bureau of Alcohol, Tobacco,                    The Bush administration clearly does not
 and Firearms (ATF) to support a civil suit          want to answer to Congress. Vice President
 against several manufacturers, wholesalers          Cheney’s showdown with GAO was just the
 and dealers for allegedly promoting and             most high profile case in what’s emerged
 facilitating the unlawful possession of             as a pattern of stonewalling. From “Clear
 firearms. However, the Justice Department,          Skies” to drinking water contamination to
 backed by the National Rifle Association,           Medicare reform, the administration has been
 argued that such disclosure is exempt               unwilling to deal with Congress honestly, and
 from FOIA because it would interfere with           instead has sought to advance its agenda
 law enforcement proceedings and violate             by withholding information that might
 personal privacy interests.                         spark open debate. Such secrecy subverts
     Early in 2003, the Seventh Circuit Court        democratic decision-making and undermines
 of Appeals, based in Chicago, ruled in favor        public accountability.
 of the city and ordered ATF to turn over its
 gun trace and sales databases, rejecting the       The Cheney Energy Task Force
 administration’s arguments as overly broad.               During the early months of the Bush
 According to the court, ATF can withhold             administration, Vice President Cheney
 particular records that might interfere              convened an energy task force whose ultimate
 with a specific investigation, but cannot            recommendations, issued May 18, 2001,
 claim a blanket disclosure exemption for             conspicuously reflected the interests of oil,
 the entire databases. Likewise, the public           gas and coal companies.
 interest outweighs ATF’s sweeping claim of                At the time, President Bush said, “I can
 personal privacy in concealing the names             assure the American people that mine is
 and addresses of gun purchasers. In fact,            an administration that’s not interested in
 privacy advocates such as the Electronic             gathering dust. We’re interested in acting.”
 Privacy Information Center strongly backed           As discussed earlier, this has meant weaker
 disclosure, arguing for more tailored                environmental standards and more extensive
 privacy protections.                                 drilling and mining on public lands.
     This information will help identify patterns          Given this profound effect on
 to determine whether firearms used in crimes         administration policy, members of Congress
 are sold by particular retailers or sold to          and other interested parties began to raise
 particular purchasers, while allowing for an         questions about the nature and composition
 evaluation of ATF’s effectiveness in monitoring      of the Cheney task force, which took on
 unlawful sales and tracing crime guns.5              increased urgency following the collapse


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     of energy-giant Enron. Unfortunately, the                The Sierra Club and Judicial Watch (best
     administration refused to provide even              known for its numerous lawsuits against
     the most elementary answers, triggering a           Clinton administration officials) were joined
     number of hard-fought lawsuits.                     in another lawsuit against the task force
         Most troubling was the administration’s         – officially called the National Energy Policy
     unwillingness to cooperate with the                 Development Group – to gain access to White
     General Accounting Office, the research and         House documents, just as GAO was trying
     investigative arm of Congress. GAO tried for        to do. In August of 2002, U.S. District Judge
     months to obtain access to the names of task        Emmet G. Sullivan ordered these documents
     force participants, including anyone consulted      turned over, but the White House failed
     outside government, as well as basic meeting        to comply, drawing a strong rebuke from
     records, including dates and topics.6 However,      Sullivan, who reaffirmed his order
     persistent stonewalling by Vice President Cheney    that October.
     forced GAO to launch its first-ever lawsuit              Not surprisingly, the White House
     against a federal official on Feb. 22, 2002.        continued to resist disclosure as it appealed
         In announcing the decision to sue, David        the case. On Dec. 6, 2002, a federal appeals
     M. Walker, GAO’s comptroller general, wrote,        court issued a two-page order indefinitely
     “Failure to provide the information we are          delaying the Dec. 9 disclosure deadline set
     seeking serves to undercut the important            by Sullivan.
     principles of transparency and accountability            Three days later, a Bush-appointed
     in government. These principles are important       district court judge threw out GAO’s case,
     elements of a democracy. They represent             finding that GAO lacked standing to sue,
     basic principles of ‘good government’ that          regardless of whether Congress was entitled
     transcend administrations, partisan politics,       to the documents. At the time, GAO seemed
     and the issues of the moment.”7                     certain to appeal. But then congressional
         Meanwhile, a number of other interested         Republicans started to put the squeeze on,
     parties had already initiated legal action of       threatening to slash GAO’s budget if it didn’t
     their own. On Feb. 21, 2002, just as GAO was        drop the lawsuit.10 In a statement on Feb.
     preparing its suit against Cheney, a federal        7, 2003, GAO announced that it would not
     district court ordered the Department of            appeal, even though it strongly disagreed
     Energy to hand over task-force documents            with the judge’s ruling.11
     to the Natural Resources Defense Council.                “[I]n the world’s greatest democracy,
     “Despite being heavily censored, the                we should lead by example and base public
     documents show how the administration               disclosure on what is the right thing to do
     allowed energy companies and their lobbyists        rather than on what one believes one is
     to help write our nation’s national energy          compelled to do,” Walker said at the time.
     plan,” NRDC reported. “For example, the                  Unfortunately, the administration has
     records reveal that Energy Secretary Spencer        been more interested in preserving its “right”
     Abraham met privately more than 100 times           to secrecy. The appeals court ultimately
     with industry executives and lobbyists – many       affirmed Sullivan’s decision on July 8, 2003,
     of whom were major financial supporters             but just over five months later, on Dec.
     of President Bush’s campaign. Yet Secretary         15, 2003, the Supreme Court granted the
     Abraham refused to meet with environmental          administration’s request to review the ruling,
     organizations.”8 These documents also               further delaying release of the task force
     revealed that Enron had contact with the task       documents. Unfortunately, whatever the
     force four times, in addition to the six times      outcome of this case (which is expected to
     company officials, including former chairman        be decided by July 2004), there is now little
     Kenneth Lay, reportedly met with Vice               stopping the administration from withholding
     President Cheney.9                                  information from GAO virtually as it pleases,


90
 striking a severe blow against transparency         agency withheld information, later leaked,
 and accountability.                                 that these cuts could be achieved relatively
                                                     cheaply – increasing electricity prices by
No Answers for the Minority Party                    two-tenths of a cent per kilowatt hour more
     In one of its more brazen moves, the            than the Clear Skies Initiative. “All we’re
 administration announced that it would not          interested in is having a full and honest
 answer any questions from the minority party        debate so we can make a well-informed
 (which happens to be the Democrats in both          decision,” Carper said. “I don’t believe that’s
 the House and Senate). In an email sent Nov.        too much to ask.”15
 5, 2003, to majority and minority staff on the
 House and Senate appropriations committees,        Drinking Water and Lettuce Contamination
 Timothy A. Campen, director of the White                EPA has prevented regional offices
 House Office of Administration, explained,          from speaking to congressional staff about
 “Given the increase in the number and types         perchlorate contamination. Perchlorate is
 of requests we are beginning to receive from        found in rocket fuel and has contaminated
 the House and Senate, and in deference to the       drinking water near Department of Defense
 various committee chairmen and our desire to        sites in at least 22 states. On Jan. 15, 2004,
 better coordinate these requests, I am asking       Reps. John Dingell (D-MI) and Hilda Solis
 that all requests for information and materials     (D-CA) released a GAO report that found
 be coordinated through the committee                the Pentagon had made little progress in
 chairmen and be put in writing from the             cleaning up these sites.16 Democratic staff
 committee.”12                                       of the House Commerce Committee, where
     This would effectively give the                 Dingell is the ranking Democrat, followed
 Republican majority, which controls                 up with further investigation, but discovered
 congressional committees, veto authority            that regional officials “had been instructed
 over inquiries from the Democratic minority.        by an EPA headquarters official not to speak
 “I have not heard anything like that                with committee staff.”17 Dingell and Solis
 happening before,” said Norman Ornstein,            responded in a letter to EPA Administrator
 a congressional specialist at the American          Mike Leavitt, stating, “There is no need
 Enterprise Institute. “As far as I know, this is    to interject another level of Headquarters
 without modern precedent.”13                        bureaucracy into the process unless there is
                                                     a decision on your part to delay and hamper
The Clear Skies Initiative                           EPA employees from providing information
       EPA withheld analysis showing that            about the contamination of actual and
  the administration’s plan to reduce power          potential drinking water supplies and the
  plant emissions – the “Clear Skies Initiative”     health impacts for the public.”
  – is far less effective than alternative               Previously, the administration imposed
  bipartisan legislation and only marginally         a gag order on EPA scientists and regulators
  less expensive.14 Clear Skies does not             from publicly discussing perchlorate after two
  address carbon dioxide emissions – a major         independent studies from the spring of 2003
  contributor to global warming – unlike             strongly suggested that it is contaminating the
  the competing bill, which was introduced           nation’s lettuce supply.18 An internal agency
  by Sen. Thomas Carper (D-DE) and is co-            study – completed but bottled up – suggests
  sponsored by Republican Sens. Judd Gregg           that perchlorate concentration in much of
  (NH) and Lincoln Chafee (RI). EPA gave             the nation’s lettuce could range as high as 90
  Carper an analysis that found his bill would       parts per billion, more than four times EPA’s
  also more quickly and dramatically reduce          current recommended daily dose.19 In 2002,
  power-plant emissions of sulfur dioxide,           EPA found that perchlorate in drinking water
  nitrogen oxide and mercury. However, the           poses a threat to human health, particularly


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      infant development, at concentrations above          into Medicare.22 As provided by legislative
      one part per billion. Defense contractors and        language approved in 1997, Democrats
      the Pentagon, which potentially face hefty           requested updated calculations based on
      compliance costs should EPA adopt a new              changes in an administration-backed Medicare
      perchlorate standard, challenged the agency’s        reform bill. Yet Scully refused to hand over
      findings, and have apparently won out with           Foster’s analysis, saying he would release it
      the White House.                                     “if I feel like it.”23
           In response, the Natural Resources                   Testifying before the House Ways and
      Defense Council launched a legal challenge to        Means Committee in March 2004, Foster
      force the administration to reveal documents         said he had estimated at the time that the
      regarding industry and White House influence         president’s plan – which was signed into law
      over EPA’s approach to perchlorate. (The             in November 2003 – would cost $500 to $600
      administration had previously denied NRDC’s          billion over the next decade, substantially
      request for these documents under the                higher than the $395 billion forecast by the
      Freedom of Information Act.)                         Congressional Budget Office and the $400
           “It appears that the White House and            billion the president said he would spend.
      Pentagon have joined forces with a handful of        “We know you would not have had the votes
      defense contractors to stop EPA from doing           to pass this bill if the true cost of the bill
      its job,” said Erik Olson, a senior attorney with    was known,” Rep. Charlie Rangel (D-NY),
      NRDC. “They want EPA out of the business             the committee’s ranking Democrat, said to
      of protecting the public from this dangerous         Republican members, adding he was amazed
      tap water toxin because it would cost the            “how far the majority party was willing to go
      Pentagon and industry polluters millions of          to keep the Congress in the dark.”24
      dollars to clean it up.”20
                                                          Justice Department Secrecy
     Medicare Reform                                             On March 27, 2003, the Justice
          In June of 2003, Bush Medicare chief              Department issued a directive that seeks to
      Tom Scully threatened to fire his top actuary,        tighten control over communication between
      Rick Foster, if Foster released calculations to       department employees and Congress.
      House Democrats that called into question             Specifically, employees are to inform the
      the administration’s prescription-drug                department’s Office of Legislative Affairs
      plan to introduce private managed care                “ahead of time and as soon as possible – of
                                                            all potential briefings on Capitol Hill and
     Fox In the Henhouse                                    significant, substantive conversations with
     Tom Scully, former administrator of Centers for        staff and members on Capitol Hill,” including
     Medicare and Medicaid                                  phone calls. Legislative Affairs, in turn, must
           Prior to his appointment as CMS                  clear the contacts and accompany employees
       administrator, Scully served as president and        to briefings.
       CEO of the Federation of American Hospitals,              Sen. Charles Grassley (R-IA), co-sponsor
       the trade association representing for-profit        of legislation to enhance whistleblower
       hospitals. He also served on the board of            protections, called the directive “an attempt
       Oxford Health Plans and DaVita Corporation,          to muzzle whistleblowers” and “a very
       two of the nation’s largest health care service      inappropriate interference,” adding that he
       providers. Months before Scully resigned in          has already observed a chilling effect.25
       December 2003, he obtained a waiver from                  Rep. James Sensenbrenner (R-WI),
       HHS officials permitting him to work on              for one, has contended that the Justice
       Medicare legislation while negotiating with          Department has failed to share enough
       potential employers whose work would be              information on the implementation of the
       affected by it.21                                    USA Patriot Act, which greatly expanded the
                                                            government’s ability to conduct domestic

92
 surveillance. The act is set to sunset in            technical deficiencies in the project.28 A
 2005, and Congress must be able to give              Labor Department investigator deemed this
 a fair evaluation in deciding whether to             termination “extraordinarily egregious.”29
 reauthorize.
                                                     Cleanup of Nuclear Waste
                                                           EPA ombudsman Robert J. Martin
Cracking Down                                          alleges that former EPA Administrator
        on Whistleblowers                              Christie Todd Whitman punished him for
      Government whistleblowers perform                opposing a number of nuclear-waste cleanup
 an essential societal function. They                  settlements that appeared to be industry
 alert the public to problems that would               giveaways. This included a settlement with
 otherwise be allowed to fester in secret,             Citigroup – a principal investor in the venture
 and in doing so, create pressure to solve
 those problems. Frequently, lives are at            Fox In the Henhouse
 stake. During the Bush administration, for          Robert Card, DOE’s undersecretary for energy,
 example, a USDA meat inspector warned               science and environment
 of listeria contamination; two Department                  Card is the lead federal official in charge
 of Energy employees testified on rampant              of developing the multi-billion dollar Yucca
 mismanagement at Yucca Mountain, which                Mountain nuclear waste dump, where the
 is set to become the country’s nuclear                administration plans to ship 77,000 tons of
 waste dump; and an FAA employee                       spent nuclear fuel from the nation’s nuclear
 publicly complained about the rigging                 electricity plants and bury it for tens of
 of mock terrorist raids, which left a false           thousands of years.
 impression of readiness. Unfortunately,                    Previously, beginning in 1995, Card was
 instead of acting on this information, the            director and senior vice president of CH2M-
 administration sought to punish each one of           Hill, a large science, engineering, construction,
 these whistleblowers for speaking out.                and operations firm, which is under DOE
                                                       contract to clean up the Hanford (Washington)
Yucca Mountain Nuclear-Waste Dump                      nuclear weapons site. Card also served as
      In May of 2003, the Department of                president and CEO of Kaiser-Hill – founded
  Energy intimidated and silenced two                  by CH2M-Hill – which has a 10-year $7 billion
  potential whistleblowers from testifying             DOE contract to clean up and close the
  before Congress on politicized scientific            Rocky Flats (Colorado) nuclear weapons site.
  reports and rampant mismanagement at                 Both contracts fall under Card’s purview as
  Yucca Mountain, which Energy is pushing              undersecretary.
  to make the nation’s nuclear-waste dump.26                 At Rocky Flats, DOE has fined
  Remarked Sen. John Ensign (R-NV), “It is             and reprimanded Kaiser-Hill for poor
  disturbing that responsible workers who              management and “serious deficiency” in
  uncover problems with Yucca Mountain                 safety performance, and the company had
  procedures are being retaliated against by           to pay restitution after revelations that
  the Department of Energy and its contractors.        $200,000 in federal contract money had been
  Their attempts to silence critics of the project     diverted to fight a whistleblower.30 Parent
  have amplified our concerns about their              company CH2M-Hill has also been fined or
  commitment to quality assurances at Yucca            penalized more than $725,000 since 1996
  Mountain.”27 Previously, in fall of 2002,            for numerous worker safety, procurement,
  DOE transferred the project’s director of            and other contract violations, and a House
  quality assurance and ordered the firing of          subcommittee found it overcharged the
  another quality assurance manager because            EPA Superfund millions of dollars for
  of their aggressiveness in identifying               environmental cleanups.31


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      capital firm of Whitman’s husband – that            with hunters. The Park Service initially put
      limited the financial giant’s liability for a       a “gag order” on Jackson, prohibiting him
      Superfund site in Denver to $7.2 million,           from talking to the press, and then retaliated
      leaving taxpayers with a potential $93              by refusing to rehire him for the summer of
      million tab for the remaining cleanup costs,        2002.38 Fortunately, as a result of a whistle-
      according to Martin.32 Whitman decided to           blower complaint, Jackson was able to
      move Martin to EPA’s Office of Inspector            negotiate his reinstatement for the summer
      General after this dispute. However, Martin         of 2003.39 “He’s been through the wringer
      refused the transfer and resigned on April 22,      for no apparent reason other than speaking
      2002, because “I will not continue to serve as      the truth,” Sen. Grassley said. “I’m glad the
      an independent ombudsman but will merely            National Park Service finally came to
      answer a telephone.”33                              its senses.”

     Listeria-Contaminated Food                          Airport Security
            Vincent Erthal, a USDA inspector who                The Federal Aviation Administration
       worked the night shift at a Wampler Foods           transferred Bogdan Dzakovic, who formerly
       plant in Franconia, Penn., repeatedly               led mock raids on airports, to bureaucratic
       reported food safety violations at the facility     Siberia after he publicly faulted the agency
       – including Listeria contamination – and            for suppressing warnings and rigging
       requested enforcement action in the fall of         security tests.40 “The more serious problems
       2001.34 Yet USDA ignored these warnings             in aviation security we identified, the more
       and 10 months later the plant was linked to         the FAA tied our hands behind our backs and
       a listeria outbreak that killed eight people        restricted our activities,” Dzakovic told the
       and sickened more than 50, resulting in             National Commission on Terrorist Attacks
       the recall of 27 million pounds of ready-to-        Upon the United States, in testimony May
       eat poultry products. When the Wampler              23, 2003. “All we were doing in their eyes
       story received media attention, USDA                was identifying and ‘causing’ problems
       Undersecretary for Food Safety Elsa Murano          that they preferred not to know about.”
       attempted to discredit Erthal, claiming “he         Dzakovic further described his reassignment
       has not produced any proof, any evidence”35         to the new Transportation Security Agency:
       of USDA negligence (leaving aside the               “During most of 2002, my primary job
       fact that inspectors are prohibited from            was punching holes in paper and putting
       removing government documents from                  orientation binders together (and other
       inspected establishments36), and seemed             menial work) for the hundreds of newly
       to imply that he was responsible for the            hired TSA employees. My current job is
       outbreak because he didn’t push “harder to          even further removed from keeping bombs,
       blow the whistle.”37                                weapons, and terrorists off planes.”
                                                                Dzakovic also warned that his fate could
     Hunting Around Yellowstone                            have been worse under the new law pushed
          At the beginning of the Bush                     by the Bush administration that restricts
      administration, Bob “Action” Jackson, a              critical infrastructure information (discussed
      long-time seasonal ranger at Yellowstone             below): “If an employee blows the whistle
      National Park, raised concerns over                  with this unclassified CII evidence, it is a
      lax enforcement of wilderness rules. In              criminal act subject to immediate termination
      particular, he turned the spotlight on               from the government, and up to a year in
      hunters who use salt to lure elk out of the          jail… If it had been law when I blew the
      park and then leave behind carcasses that            whistle, I could have been fired and be
      attract endangered grizzly bears, which are          sitting in jail instead of being vindicated and
      frequently shot when they come into contact          testifying today.”


94
       Far from being a threat, such whistleblowing      voluntarily handing it over to Homeland
  is essential to protecting the public. As Dzakovic     Security. This information cannot be
  put it, “Lack of personal accountability for           disclosed to the public, and crucially, it
  ALL levels of government service; repression           cannot be used in any civil action, private or
  of government professionals exercising the             governmental, even if the action concerns a
  freedom to warn of security breakdowns caused          violation of legal standards. Any government
  by mismanagement; and abuses of secrecy                official who “leaks” such information is
  as an excuse to cover up the government’s own          further subject to criminal prosecution and
  misconduct are three strikes against                   up to a year in prison.41
  public safety.”                                             Purportedly, this is supposed to give an
                                                         incentive to companies to report information
                                                         on possible security vulnerabilities. Yet in
Hiding Information                                       the process, it creates an enormous loophole
           in the Name of 9/11                           to dodge public accountability for corporate
       In the aftermath of 9/11, the administration      wrongdoing. Indeed, companies themselves
  has moved to broadly restrict access to                are allowed the chief responsibility for
  information, including, for example, data on           determining what constitutes “critical
  power plants and chemical facilities. In the           infrastructure information,” with virtually no
  past, the public has used such information             criteria for government validation.
  to hold corporate interests and government                  As a result, potential abuses are not hard
  accountable to achieve significant safety              to imagine – especially if interpreted broadly
  improvements. However, the administration              by the increasingly corporate-friendly courts.
  has declined to even consider the idea that            For instance, suppose a manufacturer begins
  disclosure can actually make us safer, while           using a new unregulated chemical in its
  upholding our democratic values. Instead,              production process that is highly flammable
  secrecy has taken root through a host of               and can cause acute respiratory distress,
  misguided policies, whose clearest effect has          endangering workers and the surrounding
  been to shield the administration’s corporate          community. Under the new law, the
  allies from public scrutiny.                           manufacturer could head off inquiries from
                                                         federal regulators – and stop workers and
A Black Hole for Corporate Secrets                       the public from being alerted – by disclosing
      To protect our nation’s communities we             potential vulnerabilities associated with
  need to ask ourselves some tough questions.            the chemical to Homeland Security. In the
  Are bank computer systems safe from hackers?           process, it would block the information from
  What threat is posed by hazardous chemicals            being used in a civil action should something
  stored near population centers? How secure are         ever go wrong, resulting in injuries or deaths.
  state water supplies or electrical power facilities?        Needless to say, this removes important
  Are local health systems adequately prepared to        incentives for fixing the problem, making us
  respond to a community emergency?                      less safe as a result. Homeland Security may
      Unfortunately, the answers to these                be alerted to the danger, but its hands would
  questions are now more elusive thanks to a             be tied to do anything about it. Meanwhile,
  new exemption to the Freedom of Information            everyone else is left permanently in the
  Act, which was pushed by the Bush                      dark, removing the threat of public pressure
  administration as part of the law that created         and embarrassment – which has always
  the Department of Homeland Security.                   been a crucial factor in changing corporate
      Under this expansive exemption,                    behavior – as well as civil action against
  which also preempts state disclosure laws,             company negligence.
  companies can permanently inoculate such                    In the lead-up to passage, Sen. Robert
  “critical infrastructure information” by               Bennett (R-UT), a key co-sponsor of the


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      legislation, originally reached a compromise         shortages caused by soaring demand. As
      with Sens. Carl Levin (D-MI) and Patrick Leahy       details emerged, however, it became clear
      (D-VT) that stripped out the most troubling          that these companies had purposely caused
      provisions – preempting state disclosure             the shortages to drive up prices and pad their
      laws, granting civil immunity, and subjecting        bottom line – taking advantage of the state’s
      government officials to criminal penalties for       deregulation of electricity two years earlier.
      leaks. The Governmental Affairs Committee                 In a plea agreement, the head of Enron’s
      approved this version on May 22, 2002, but           western trading desk, Timothy Belden,
      during the lame-duck session following the           acknowledged that between 1998 and 2001,
      2002 elections, the Bush administration              he and “other individuals at Enron agreed to
      insisted that these provisions be restored.          devise and implement a series of fraudulent
          Not surprisingly, a number of powerful           schemes” in the California market designed
      corporate interests urged this decision. Born        to “obtain increased revenue for Enron from
      in the aftermath of the “Y2K” problem, the           wholesale electricity customers and other
      idea originated with the computer industry           market participants…”45
      over concerns about cyber security, but                   This market manipulation should have
      quickly drew interest from the traditional           been obvious to the Federal Energy Regulatory
      manufacturing sector, such as the Edison             Commission, which repeatedly refused to
      Electric Institute, a trade association for          take action to protect consumers. As stated in
      electric utilities.42                                a report by the Senate Governmental Affairs
          In fact, as Maryland Law Professor Rena          Committee on Nov. 12, 2002, “On a number of
      Steinzor conveyed, “EEI’s advocacy was so            occasions, FERC was provided with sufficient
      pronounced that, during a fall 2001 visit to         information to raise suspicions of improper
      [Bennett’s office], I was startled to discover       activities – or had itself identified potential
      that an EEI lobbyist named Larry Brown had           problems – in areas where it had regulatory
      been invited to the meeting to explain how           responsibilities over Enron, but failed to
      the prospective law was intended to operate.         understand the significance of the information
      Although Mr. Brown assured me that my                or its implications. Over and over again, FERC
      comments about the legislation’s overly broad        displayed a striking lack of thoroughness and
      language were ‘paranoid,’ it rapidly became          determination with respect to key aspects of
      clear that none of the bill’s industry supporters    Enron’s activities – an approach seemingly
      had any interest in making revisions to              embedded in its regulatory philosophy,
      address such concerns.”43                            regulations, and practices.”46
          Likewise, Homeland Security’s                         Now FERC is insisting that it be trusted,
      implementing rule44 provides no clarity              absent public disclosure, to appropriately
      for validating claims and no process to              monitor and deal with information on the
      “declassify” critical infrastructure information,    country’s power companies. On March 3, 2003,
      setting up the Bush administration as a black        FERC completed a rule that exempts “critical
      hole for corporate secrets.                          energy infrastructure information” from the
                                                           Freedom of Information Act. This exemption,
     Cloaking the Power Industry                           which is legally questionable under FOIA,
           FERC, lead by Bush appointees, has made         includes anything deemed potentially useful
       it more difficult for the public to evaluate        to a person planning an attack on “production,
       problems with our electrical supply, which is       generation, transportation, transmission or
       especially troubling given the commission’s         distribution of energy.”
       recent lackluster performance. Between                   Needless to say, this is incredibly broad.
       November 2000 and May 2001, California              For example, FERC no longer discloses
       endured rolling blackouts to compensate for         “historical transmission planning reports,”47
       what power companies said were electricity          in which utilities describe their power flow,


96
 transmission plans and reliability, and present           FERC actually removed such information
 a detailed evaluation of system performance.48        from its web site before completing the rule
 This sort of information could be especially          and just after the terrorist attacks of Sept. 11,
 important as the country moves to address             2001. In the process, the commission assumed
 deficiencies in the electrical grid following the     that “all oversized documents” contained
 massive power outage that swept through               information that should not be disclosed. No
 New York, parts of New Jersey, Ohio and               review was undertaken to confirm the truth of
 Michigan in August 2003.                              this assumption.
     In an amazing provision of the rule urged             FERC, in its words, “next identified and
 by the power industry, utilities also no longer       disabled or denied access to other types of
 have to publicly disclose plans for building a        documents dealing with licensed or exempt
 new plant – leaving no opportunity for public         hydropower projects, certified natural gas
 questioning at any point. Likewise, FERC is           pipelines, and electric transmission lines
 withholding maps on proposed pipelines, which         that appeared likely to include critical
 carry high-pressure explosive gas, including one      energy infrastructure information” – again,
 that would run through 12 New York counties.49        automatically yanking them from public
                                                       view with no systematic review. According
Foxes In the Henhouse                                  to FERC, this affected “tens of thousands of
Nora Mead Brownell, Patrick Henry Wood                 documents,” which the commission laughably
III, and Joseph T. Kelliher, Federal Energy            asserts was “undertaken as cautiously and
Regulatory Commission                                  methodically as possible.”51 With the new
       Enron CEO Kenneth Lay successfully              rule – which was strongly backed by power
  lobbied President Bush to appoint Brownell           companies, including their trade association,
  and Wood, both of whom are strong                    the Edison Electric Institute – these once
  proponents of energy deregulation.50                 widely disseminated documents may be off
       Brownell, chair of the commission,              limits even through a FOIA request.
  previously served as a utility regulator with
  the Pennsylvania Public Utility Commission         Information on Government Web Sites
  (PPUC). In this capacity, she helped Enron               Following the terrorist attacks on Sept.
  move into Pennsylvania, earning herself the          11, 2001, federal agencies began summarily
  nickname “Nora Mead Brownout.” Before                removing tens of thousands of documents
  her appointment to the PPUC, Brownell was            from their web sites, purportedly because they
  senior vice president for corporate affairs at       might be useful in preparing another attack.
  Meridian Bancorp, a Philadelphia financial           Yet in yanking this information, the Bush
  institution, and had no experience in public         administration failed to consider the substantial
  utility management.                                  benefits of disclosure, depriving communities
       Wood is former chairman of the Public           of critical information to protect themselves
  Utility Commission in Texas and previously           (see examples on next page).
  worked at Baker & Botts, a big Texas oil                 This information can be scary, to be sure,
  law firm.                                            but its removal doesn’t solve the problem.
       Kelliher previously worked at Public            In fact, it removes important incentives
  Service Electric and Gas Company as                  for change – namely public pressure
  manager of federal affairs, and before that          and embarrassment – and may invite
  worked for the American Nuclear Energy               complacency and a false sense of security,
  Council in the late 1980s. Just prior to his         which is exactly what we don’t need. In this
  nomination, Kelliher served as a senior policy       way, disclosure can be a potential tool to
  advisor to Energy Secretary Spencer Abraham          fight terrorism (along with everyday health
  and sat on the Bush-Cheney presidential              and safety concerns) while upholding our
  transition team.                                     democratic values.


                                                                                                           97
                                                    Sworn
                                                        to Secrecy




          Of course, in some cases, it may make            implement procedures” for suppressing
      sense to withhold information for security           such information, which is truly an ominous
      reasons. For instance, there is no compelling        development given the administration’s
      reason to provide detailed floor plans of            penchant for secrecy.
      chemical or nuclear facilities. Yet where health
      and safety are concerned, the presumption          Information on Chemical Hazards
      should lie with disclosure. The Bush                      In 1984, a Union Carbide plant in Bhopal,
      administration has unfortunately gone the            India, released 40 tons of the toxic chemical
      other way, keeping the public in the dark and        methyl isocyanate into the surrounding
      potentially making us less safe as a result.         community, killing more than 2,000 and
          On March 19, 2002, White House Chief             injuring over 300,000, many of whom
      of Staff Andrew Card affirmed the practice           still suffer long-term effects.54After this
      of withholding information from web sites            catastrophe, Americans began wondering
      in a memo to all federal agencies ordering           whether such an accident could happen here
      them to “safeguard” information that is              – and the answer demanded action.
      “sensitive but unclassified.”52 This new                  A study commissioned by EPA in 1990
      category broadly includes, in the agency’s           found that since 1980 there were at least 15
      judgment, “information that could be misused         accidents in the United States that exceeded
      to harm the security of our nation and the           Bhopal in volume and toxicity of chemicals
      safety of our people” – a virtual catchall since     released.55 Only circumstances such as
      most information (even the phone book, for           wind conditions, containment measures,
      instance) at least carries the potential to be       and rapid evacuations prevented disastrous
      used for harm.                                       consequences from taking place.
          Shortly after Card’s memo, a provision                Congress responded to this danger
      codifying the “sensitive but unclassified”           through a series of actions designed to make
      category – labeled “Sensitive Homeland               chemical facilities more accountable to
      Security Information” – was slipped into the         the public. In particular, as part of the 1990
      Homeland Security Act (which created the             amendments to the Clean Air Act, Congress
      Department of Homeland Security), drawing            directed each facility to develop a “Risk
      no attention or debate.53 The president now          Management Plan,” which EPA is to make
      has the legal authority to “prescribe and            available for public scrutiny.


     Information Yanked from Government Web Sites          • Report by the Department of Energy on the
       • Chemical-facility Risk Management Plans.            dangers of liquefied gas fuel.

      • Report on chemical site security that              • Maps from the International Nuclear Safety
        concluded “security around chemical                  Center allowing users to click on the location
        transportation assets ranged from poor to            of a nuclear plant to learn more about it.
        non-existent.”56
                                                           • For a time, the entire Nuclear Regulatory
      • Data on enforcement actions by the Federal           Commission web site. “Select content” was
        Aviation Administration.57                           later restored.

      • Maps from the Office of Pipeline Safety            • Reports on water resources by the U.S.
        that show the location of pipelines and              Geological Survey, which also instructed the
        whether and when they have                           Federal Depository Libraries to “destroy” all
        been inspected.                                      copies of a CD-ROM on “characteristics of
                                                             large public surface water supplies.”


98
    These plans include, among other things,     and safety advocates have already used this
five-year accident histories, measures to        information to highlight problems at specific
prevent an accidental release, response          facilities. For example, exposure of this data
plans to mitigate damage should one occur,       led to hazard-reduction measures at the Blue
and assessments of potential dangers to          Plains Wastewater Treatment Plant, whose
surrounding communities, including worst-        vulnerability zone included the White House,
case scenarios.                                  Congress, and Bolling Air Force Base (see
    More than two years before the 9/11          page 61 for discussion). In short order, the
terrorist attacks, Congress decided to           Blue Plains facility substituted chlorine with
restrict access to these worst-case scenario     sodium hypochlorite bleach, which does not
assessments for security reasons, making         have the potential to drift off-site.
them available only in 50 “reading rooms”             The Washington Post also relied on RMP
around the country. This happened after the      data – including the worst-case scenarios
chemical industry – a longtime opponent of       restricted by Congress – to describe a number
such disclosure – convinced the FBI that this    of frightening possibilities in an extensive
data created an increased risk of terrorism.     front-page story on Dec. 16, 2001.58 For
    At the time, the FBI determined there        instance, “a suburban California chemical
was no increased risk associated with the        plant routinely loads chlorine into 90-ton
rest of the information contained in Risk        rail cars that, if ruptured, could poison more
Management Plans. Nonetheless, even after        than 4 million people in Orange and Los
this scrubbing, the RMPs were immediately        Angeles counties”; “a Philadelphia refinery
yanked from EPA’s web site following 9/11. To    keeps 400,000 pounds of hydrogen fluoride
date, all RMP information remains down, and      that could asphyxiate nearly 4 million
no explanation for its removal has been given    nearby residents”; and “a South Kearny,
(other than in the most general sense).          N.J., chemical company’s 180,000 pounds of
    While the usefulness of this information     chlorine or sulfur dioxide could form a cloud
to terrorists is murky or perhaps nonexistent,   that could threaten 12 million people.”
the broader usefulness is crystal clear,              Some continue to argue that the mere
enabling citizens to hold facilities             reporting of such information is gravely
accountable to make upgrades and improve         dangerous. Yet ignoring it, as the Bush
safety in their communities.                     administration has done thus far, is far
    Although new – EPA did not begin             worse. The information may be gone, but
posting RMPs until June of 1999 – health         the danger remains.




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