Commentary
Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
So what’s the problem with government keeping secrets?
In an era of terrorist threats and so-called "permanent war," shouldn’t those in “a position to know” have wide authority to make certain that in some cases the rest of us don’t?
The answer is a roiling mix of contradictory needs and views:
- As the old joke goes, “You’re not paranoid if they really are after you.” From possible attempts by foreign governments to penetrate military computers to terrorists who might use simple facts about domestic infrastructure for horrific ends, Americans do face daily threats to national safety and security.
- At the same time, Americans need detailed information about how their government is — or isn’t — functioning in order to measure performance, hold officials accountable, monitor how taxes are spent and assess personal safety. From public accounting of public funds to bridge-safety reports to lists of public-employee salaries to White House e-mails, information is the key to assessment.
The impact of 9/11 still ripples through the issue of what we can, or should, know about how our government is operating, according to a recent report on government secrecy by OpenTheGovernment.org, a coalition of 67 groups focused on freedom of information.
The group’s 2007 report showed that last year the federal government made 231,995 decisions to classify documents, and invoked a “state secrets” power 39 times to withhold information from courts and Congress — with the latter action occurring more than six times more often in a single year than for the entire Cold War.
And in the past six years, the report says, state legislatures enacted 266 laws to limit public access to public information, including 52 bills that dealt with “expanded executive powers, confidentiality based on federal regulations or programs, or closure of otherwise public meetings for security reasons.”
National security and Pentagon secrecy are a common focus for the debate over open government. But a trend toward secrecy and non-disclosure also has a practical dollars-and-“sense” connection — to our First Amendment rights to petition the government for “redress of grievances” and to assemble to seek changes in policy.
First, the dollars aspect: OpenTheGovernment’s report says that in 2000, 45% of contract expenditures were awarded through open competition; by 2006, that figure fell to 34%. Unspecified intelligence contracts — where the purpose and details are classified — made up 18% of Pentagon contracting, or $31.5 billion, more than double the level from 12 years ago.
And now the “sense” part, as in common sense. The collapse of an interstate highway bridge in Minneapolis prompted a spate of press and citizen requests for details about inspections, safety reports and recommendations. Granted, the information often was technical and open to misunderstanding and misinterpretation. But common sense — and democracy — would seem to argue for more disclosure, not less.
In Illinois, the Department of Transportation has balked at providing basic data about thousands of bridge reports, citing fears that terrorists could use the information to “compromise the security” of the spans. Other states have also limited disclosure.
Since the disaster, nationwide, many journalists and others have reported on the safety, inspection processes, funding for repairs and ratings of heavily used bridges in their areas. Though it’s legitimate to ask, “Where were news reports of such evaluations before the Minneapolis tragedy?”, there is no question of their value now.
Yes, terrorists may know a little bit better where to find weak links in the national transportation chain. But you and I can also better judge whether to trust a particular bridge the next time we set out in the car. And we can better make informed decisions on whether our local, state and federal officials have been doing a good job of protecting us from the dangers of deteriorating concrete and steel, poor designs and simple aging.
As citizens we have a duty as well as a right to employ the First Amendment’s provisions for peaceable assembly to discuss our government’s performance, and then perhaps petition the government — two of the least-cited but equally important freedoms among the amendment’s five.
But we can’t know when it’s time to carry out that constitutional role if we don’t know what our national leaders or local bridge inspectors are doing.
Gene Policinski is vice president and executive director of the First Amendment Center, 1101 Wilson Blvd., Arlington, VA 22209. E-mail: [email protected].
