Ask a journalist about the Patriot Act, and the response may
strike you as overly suspicious or even paranoid. But those who
have submitted a Freedom of Information Act request to a federal
agency know better.
Consider FOIA requestor Robert Todd, who recently asked the
Department of Defense and the General Services Administration for
copies of the unclassified cover sheets typically used by
government officials to indicate a document's sensitivity. Yellow
sheets are used for "confidential" documents, red for "secret," and
orange for "top secret." GSA produces these colorful sheets by the
millions.
The Defense Department rejected Todd's request, claiming that
release of the unclassified documents would aid circumvention of
agency rules, policies or statutes and impede the Pentagon from
fulfilling its mission.
Todd got the exact opposite response from GSA, which promptly
provided him with copies of the unclassified cover sheets "with no
qualms whatsoever," according to the Federation of American
Scientists.
View the cover sheets.
Regardless of which agency you think made the right decision,
Todd's experience surprises no one in an American newsroom. Most
journalists can recite litanies of nightmares in which their FOIA
requests -- often for the most mundane documents -- to local, state
and federal agencies and officials have been delayed, misplaced,
ignored, ridiculed, rejected and abused.
This unfortunate fact was documented last year by the National
Security Archive at George Washington University, which described
"a federal FOIA system in extreme disarray. Agency contact
information on the web was often inaccurate; response times largely
failed to meet the statutory standard; only a few agencies
performed thorough searches including e-mail and meeting notes; and
the lack of central accountability at the agencies resulted in lost
requests and inability to track progress."
What's the link between this FOIA mess and the Patriot Act?
Attorney General John Ashcroft and other high-ranking Justice
Department officials discount worries that the Patriot Act would
ever be used to seize a reporter's notes, tapes of interviews with
confidential sources or documents in an anti-terrorism
investigation.
But Assistant Attorney General Daniel Bryant recently told Reps.
James Sensenbrenner, R-Wisc., and John Conyers, D-Mich., that under
the Patriot Act's Section 215 "such an order could conceivably be
served on a public library, bookstore or newspaper, although it is
unlikely that such entities maintain those types of records."
Bryant declined to say how many times the government has requested
such a Section 215 order.
One wonders if Ashcroft would support amending the Patriot Act to
state explicitly that neither Section 215 nor any other of its
provisions are to be applied in violation of the Privacy Protection
Act of 1980, which prohibits officials from searching or seizing a
journalist's "work product" or "documentary materials."
A narrow list of exceptions in the 1980 law includes national
defense but requires that officials demonstrate probable cause to
believe the journalist has or is about to commit a crime. No such
prior showing of probable cause is required under Section 215,
according to the Reporters Committee for Freedom of the Press
(www.rcfp.org).
There is no reason to doubt the good intentions of Ashcroft, Bryant
or others in the Bush administration who promise never to violate
the rights of any American, except under the most extreme
circumstances. They are right that many of the Patriot Act's most
controversial provisions simply extend to the war on terrorism
actions and procedures law enforcement officials have used for
years against drug runners and the mob. And an occasional
restriction on a journalist is a small price to pay for security
against terrorism, right?
Wrong. The problem is there are no guarantees that law enforcement
and national security officials in future administrations will
respect civil liberty or that federal functionaries who routinely
abuse or ignore the FOIA now won't soon do the same to the Patriot
Act.
James Madison -- arguably the father of the U.S. Constitution --
knew better and so sought to limit federal power. Madison's 18th
century warning rings true for our generation, too: "There are more
instances of the abridgement of freedom of the people by gradual
and silent encroachments of those in power than by violent and
sudden usurpations."
Mark Tapscott is
The Heritage Foundation's director of media services and its
Guardabassi Fellow for Media and Public Policy.
COMMENTARY Defense
FOI Blunders and Abuses
Sep 3, 2003 3 min read
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