"A reckless abuse of power"

This one was a bit surprising.

The Justice Department recently subpoenaed the notes of reporters at the San Francisco Chronicle, as it attempted to identify whoever leaked grand jury testimony to the paper.

I've discussed before why the government should be cautious when it comes to trampling on reporter-source confidentiality. But what's interesting about this case is the source of the criticism: the former chief spokesman for Attorney General John Ashcroft.

The former spokesman, Mark Corallo ... said Mr. Ashcroft's successor, Alberto R. Gonzales, had acted improperly in issuing the subpoenas.

"This is the most reckless abuse of power I have seen in years," Mr. Corallo said in an interview. "They really should be ashamed of themselves."

The subpoenas, part of an effort to identify The Chronicle's sources for its coverage of steroid use in baseball, would not have been authorized by Mr. Ashcroft, Mr. Corallo said. "You just don't ride roughshod over the rights of reporters to gather information from confidential sources," he added.

I'm not the only person who was surprised by the source of the criticism, and observers were quick to note the significance:

Specialists in journalism and First Amendment law said that Mr. Corallo's statement was itself significant evidence of a shift.

"This illustrates in an unmistakable fashion," said Mark Feldstein, director of the journalism program at George Washington University, "that the Gonzales Justice Department has moved so far away from the mainstream of established legal opinion and case law when it comes to press freedom that even judicial conservatives are disturbed by it."

I would not have believed it possible, but in Alberto "torture memo" Gonzales, Bush managed to find someone even more hostile to civil liberties than Ashcroft. That's quite an achievement.

Corallo, civil liberties, Ashcroft, Gonzales, politics, midtopia

Supreme Court whistleblower ruling

Today the Supreme Court made what is being called a significant ruling on protections for government whistleblowers.

In a victory for the Bush administration, justices said the 20 million public employees do not have free-speech protections for what they say as part of their jobs.

Critics predicted the impact would be sweeping, from silencing police officers who fear retribution for reporting department corruption, to subduing federal employees who want to reveal problems with government hurricane preparedness or terrorist-related security.

Supporters said that it will protect governments from lawsuits filed by disgruntled workers pretending to be legitimate whistleblowers.

It's best to say up front that my bias in cases like this is to favor the whistleblower. There are already enough barriers to uncovering wrongdoing; why create more? And the government does not need protection from lawsuits. Lawsuits that are without merit will be dismissed, or the government will win the case. That's how it's supposed to work.

In the case at hand, the known facts are these: a Los Angeles County prosecutor, Richard Ceballos, wrote a memo suggesting that a sheriff's deputy may have lied in a search warrant affidavit. He was later demoted and denied a promotion.

The case comes down to whether the demotion was related to the memo, and if so, was Ceballos entitled to protection from such retaliation.

There's some legitimate murkiness here, as Justice Kennedy outlined:

Kennedy said if the superiors thought the memo was inflammatory, they had the authority to punish him.

"Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission," Kennedy wrote.

Fair enough. The key is distinguishing actions and consequences. Was he justifiably disciplined because the memo was inflammatory? Or was he unfairly disciplined because he raised an uncomfortable question?

But this ruling is just a bit weird, because it strips protections only from employees whose speech is related to their official duties.

So, it appears that if one's duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then [protection] still applies. A somewhat odd result, at least on first glance. And odder still: Under today's opinion, if Mr. Ceballos had written a newspaper article complaining about the wrongdoing in question, rather than taking the matter to his supervisor, he would at least be entitled to whatever constitutiional protection Pickering/Connick offers. Does today's decision therefore give employees an incentive to go outside the established channels -- to take their concerns to the newspapers, instead of up the established chain to their supervisors?

So rather than providing clarity, the court has further muddied the waters.

One man's whistleblower is another woman's disgruntled employee, of course. And some whistleblower lawsuits are indeed without merit. But this ruling doesn't do anybody any favors. It practically orders government workers to go to the press instead of using established channels, and it makes true whistleblowers even more vulnerable to retaliation than they were before. Fabulous.

Perhaps this is an example of a conservative court throwing the ball back into Congress' court -- putting pressure on the legislative branch to pass a law clarifying the issue. But in the meantime we end up with a confusing precedent that will likely spur further lawsuits, thus foiling even the stated intent of the ruling's supporters.

Ceballos, Supreme Court, SCOTUS, politics, midtopia

Gonzalez considers charging reporters in NSA leaks

Striking another blow for government secrecy, Attorney General Alberto Gonzales may prosecute reporters for having the audacity to listen to sources describe a secret, controversial and possibly illegal warrantless surveillance program.

On the talk show, when asked if journalists could be prosecuted for publishing classified information, Gonzales responded, "There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility."

He was referring to the 1917 Espionage Act, which made it a crime for an unauthorized person to receive national defense information and transmit it to others.

This is Gonzales at his best, carefully parsing the letter of laws for anything that can be used to support a preferred course of action, without regard to context, morality or intent. It's the kind of lawyering that let him find torture exceptions to the Geneva Convention. It should surprise no one that Gonzales would resort to such technocratic lawyering, but it should persuade no one, too.

Conservatives have become quite enamored of the 1917 Espionage Act, being as it's the only extant law on the books that affords even the possibility of jailing reporters -- something of a conservative wet dream, it seems.

The problem is that the Espionage Act was a horrid piece of legislation, much of which has been explicitly and implicitly repudiated by successive Supreme Courts in the 90 years since its passage.

The law provides that any attempt to communicate or publish information related to national defense is a criminal act, if doing so was intended to harm national security. The harshest penalties apply if such actions occur during wartime.

The law is incredibly broad and vague, and could apply to just about any reporting on any aspect of military operations that doesn't involve merely repeating official military communications. Used aggressively, the law would gut any meaningful independent coverage of wartime conduct.

It also points up once again why treating our battle against terrorism as a "war" in the conventional sense is a really, really bad idea. Doing so will extend "extraordinary" wartime suspensions of civil liberties into ordinary everyday realities. And democracy is the loser when the public can no longer maintain credible independent oversight of government actions.

It speaks volumes about the administration that it is willing to reach back into the mists of time to find a bad law that it can use to silence its critics and stifle public discussion about the conduct of this "war". I hope they get their butts handed to them for even considering it.

Gonzales, espionage, politics, midtopia

CIA rendition lawsuit dismissed

A judge has dismissed a lawsuit against the CIA's "extraordinary rendition" program, saying a trial would compromise national security.

Judge T. S. Ellis 3d ruled in favor of the Bush administration, which had argued that the "state secrets" privilege provided an absolute bar to the lawsuit against a former C.I.A. director and transportation companies. Judge Ellis said the suit's going forward, even if the government denied the contentions, would risk an exposure of state secrets.

The case involves Khaled el-Masri, a Kuwaiti-born German, who was arrested on Dec. 31, 2003, in Macedonia, where he had gone for a vacation. From there, he was flown to a prison in Kabul, Afghanistan, where he was held for five months before being released. During his incarceration in Kabul, he has said, he was shackled, beaten and injected with drugs.

I understand needing to protect state secrets. But there has to be some recourse for people wrongly detained or abused by the government. "National security" cannot be a blank check for wrongdoing. And in this case the "evidence" of harm appears to be a simple affidavit by Porter Goss. With all due respect to Mr. Goss, it seems ludicrous that the CIA director has the power to squelch a lawsuit against his agency simply by saying it would harm national security.

This case is a bit odd in that regard anyway, because the government has largely acknowledged most of el-Masri's claims:

United States officials have acknowledged the principal elements of Mr. Masri's account, saying intelligence authorities may have confused him with an operative of Al Qaeda with a similar name. The officials also said he was released in May 2004 on the direct orders of Condoleezza Rice, then the national security adviser, after she learned he had been mistakenly identified as a terrorism suspect.

Then make amends to the guy already, and allow a debate on whether we should be rendering people like this, as well as what safeguards are in place to prevent and if necessary remedy mistakes and wrongdoing.

rendition, Goss, Khaled el-Masri, CIA, terrorism, politics, midtopia

Pentagon identifies all Gitmo detainees

No, seriously.

The handover marks the first time that everyone who has been held at Guantanamo Bay in the Bush administration's war on terror has been identified, according to Navy Lt. Cmdr. Chito Peppler. A total 201 of the names have never been disclosed by the Defense Department before.

The list is in pdf form here. But even more interesting is who isn't on it:

But none of the most notorious terrorist suspects were included, raising questions about where America's most dangerous prisoners are being held.

With this release, we'll start getting the stories behind the detentions. It'll be interesting to see how compelling those stories are. I have no doubt that at least some of the people at Gitmo deserved to be there. But it seems that large numbers of them committed no crime other than being in some way associated with the Taliban. And nothing justifies depriving detainees of their rights, be that access to a court or treatment according to the Geneva Conventions.

Let us hope that the Gitmo experiment is rapidly coming to an end, not to be repeated any time soon. And then let us turn our attention to the hidden prisoners still in U.S. custody. They appear to be uniformly bad people; I'm glad they're behind bars, and hope they stay there for a very long time. But we are still honor- and duty-bound to treat them according to the law. Even Saddam gets a trial; so, too, should our remaining prisoners.

Guantanamo, terrorism, Gitmo, politics, midtopia

NSA spying update

It's been a very busy day at work, and other bloggers are way ahead of me. So I'll just point you to the insights at the following purveyors of food thought:

The Moderate Voice has a good roundup of opinion.
One Donklephant poster explains his concerns, while another asks "does datamining work, anyway?"

My few thoughts:

The Washington Post poll showing 63% support for the program is worthless, because it's based on 400 people interviewed the same day the story broke. It's a sampling of opinion, but not necessarily informed opinion.

The idea behind "social networks" is to find out who's connected to whom. You find a suspect, find out who's talking to him, then find out who's talking to those people, and so on. Sounds great -- unless you've ever played the Kevin Bacon game. Do that and you soon come to the conclusion that it's possible to connect anyone to nearly anyone else in relatively few moves. Which makes sense, because the connections progress geometrically.

So to find a meaningful pattern, you have to start with a known terrorist phone number. And if you've got that, you ought to be able to get warrants to tap that phone, pull its records, and look at those direct connections.

If that's true -- and I freely admit to not be an expert -- all the database does is save a little time. Is that worth the huge invitation to abuse that it offers?

Finally, ThinkProgress notes that the phone companies could be liable for billions of dollars in damages if they turned over records illegally. Somehow I think they'll get excused from that, given the NSA arm-twisting, but there could be some expensive lawsuits in their future.

terrorism, privacy, civil liberties, NSA, politics, midtopia

Secrecy for the sake of secrecy

A National Archives audit has found that a controversial CIA reclassification program -- in which previously public documents are reclassified and withdrawn from view -- improperly classified about a third of the records.

Auditors for the Archives who reviewed a representative sample of thousands of formerly public records found that 24 percent were pulled despite being "clearly inappropriate" for reclassification, and another 12 percent were "questionable" as candidates for reclassification.

"In short, more than one of every three documents removed from the open shelves and barred to researchers should not have been tampered with," said Allen Weinstein, the archivist of the United States, who ordered the audit and imposed a moratorium on the reclassification efforts last month.

The effort was also far larger than previously disclosed:

In February, the Archives estimated that about 9,500 records totaling more than 55,000 pages had been withdrawn and reclassified since 1999. The new audit shows the real haul was much larger -- at least 25,515 records were removed by five different agencies, including the CIA, Air Force, Department of Energy, the Federal Emergency Management Agency and the Archives.

But that's not the best part. This is:

Auditors also found that the CIA withdrew a "considerable number" of records it knew should be unclassified "in order to obfuscate" other records it was trying to protect.

Some of the reclassification effort makes sense -- an otherwise innocuous document that contained the name of a still-active CIA agent, for example -- though that raises the question of why they couldn't have simply copied the document, redacted the name and left the copy public.

But much of it was nonsensical and some of it involved information that was merely embarrassing to some person or agency. And classifying nonsensitive records merely to conceal exactly what you are classifying is both indefensible and an open invitation to abuse.

J. William Leonard, who oversees classification efforts at the Archive, puts his finger on the problem:

"We hold people accountable, and rightfully so, when they engage in unauthorized disclosures of information," said Leonard, who led the audit. "But we also have that affirmative responsibility, each and every one of us, to challenge inappropriate classification decisions. And it's not done. It's simply not done with any degree of regularity in this government."

Exactly. The system is biased toward secrecy, with only weak remedial options. Not only is this corrosive to democracy; it devalues the entire classification system. Knowing that much of what is classified does not deserve to be, it's hard to get worked up when people leak classified information.

Make classification mean something. And the best way to do that is to put an end to stupid abuses of the "top secret" stamp.

National Archives, reclassification, politics, midtopia

More billable hours

Not surprisingly, the judge in Scooter Libby's perjury trial denied Libby's motion to dismiss the charges on specious technical grounds.

[Judge] Walton said Thursday he did not need to "look far" in the law to reject the claim by Libby's defense team. The judge said there is no question the attorney general can delegate any of his functions.

"There was no wholesale abdication of the attorney general's duty to direct and supervise litigation," he wrote.

I wrote previously that such a maneuver was worthy of Saddam Hussein's defense team, but not that of a former vice presidential aide. Maybe now they'll stop attacking the source and start addressing the charges -- and maybe some of my lingering questions will be answered.

If you really can't get enough of this sort of thing, Jurist has the judge's concluding statement as well as links to pdfs of many of the filings in the case.

terrorism, Plame, Iraq, Libby, politics, midtopia

A different kind of security problem

While the U.S. grapples with leaks, debates over use of intelligence and whether we should be eavesdropping on American citizens without warrants, actual secrets are waltzing out into the world through a more mundane method: theft.

Afghan cleaners, garbage collectors, and other workers from the Bagram base arrive each day offering purloined goods, including knives, watches, refrigerators, packets of Viagra, and flash memory drives taken from military laptops. The drives, smaller than a pack of chewing gum, are sold as used equipment.

Aside from the obvious question -- what are packets of Viagra doing lying around a U.S. military base? -- this petty pilferage represents a surprising security hole.

A reporter recently obtained several drives at the bazaar that contained documents marked ''Secret." The contents included documents that were potentially embarrassing to Pakistan, a US ally, presentations that named suspected militants targeted for ''kill or capture," and discussions of US efforts to ''remove" or ''marginalize" Afghan government officials whom the military considered ''problem makers."

The drives also included deployment rosters and other documents that identified nearly 700 US service members and their Social Security numbers.

How is this happening? Human failings.

Workers are supposed to be frisked as they leave the base, but they have various ways of deceiving guards, such as hiding computer drives behind photo IDs that they wear in holders around their necks, shop owners said. Others said that US soldiers sell military property and help move it off the base, saying they need the money to pay bills back home.

Yeep. It may be difficult to stop petty theft, but why are computer drives containing sensitive information left lying around to be stolen? Why are they not accounted for? Whatever happened to information security?

Detailed stuff like this is what poses real, operational threats to security, by providing actionable details for enemies to unravel. It seems a bit ludicrous to complain about things like revealing the existence of a CIA prison network or NSA spying program when stuff like this is going on.

leaks, Bagram, Afghanistan, politics, midtopia

When government works

The state Senate yesterday approved a bill on identity theft. A similar bill is pending in the House.

What I like about this development is that it represents a fairly thoughtful approach amid a lot of hyperbole and noise about privacy. Given the intemperate proposals from the governor and attorney general, it would have been easy for the legislature to get stampeded into passing a bad bill. Instead, the Pawlenty/Hatch proposals appear dead.

The identity theft proposal is a particularly good one because, as the woman featured in the story says, it can be difficult, time-consuming and expensive to get false information out of your credit report, largely because the people with the power to remove it have almost no incentive for doing so quickly.

My wife and I were the victims of identity theft several years ago, and we still haven't gotten all the smirches off of our records. Trying to do so launched us on a merry-go-round of bureaucracy, with the credit bureaus saying the bank had to request that the information be removed, the bank saying it was the collection agency's responsibility, the collection agency saying they had asked the bank to remove it, the bank saying it had lost the records.... it went on and on.

Only laws with teeth can fix that problem for victims of such theft.

But general restrictions on access to government data are a different kettle of fish. For detailed discussions of why the governor's proposal is a bad one, go here and here.

identity theft, Minnesota, privacy, politics, midtopia

What does "explain" mean?

Arlen Specter has called on Bush to explain his role in the leaking of information to reporters.

What a refreshing concept: when asked about something, give a direct answer.

But that's not really how the Bush administration has operated. Bill Clinton famously disputed the meaning of the word "is". But that was in court. In the world outside the courtroom, Bush has gone far beyond Clinton in refusing to answer questions, or providing carefully parsed but misleading answers, or changing the subject.

Some examples:

• Providing misleading cost estimates for the Medicare drug benefit;

• Using discredited intelligence in the run-up to Iraq;

• The campaign to paint Iraq as an urgent threat and somehow connected to 9/11;

• Saying Congress had access to the same intelligence, when in fact they didn't;

• Defending the Patriot Act extension by saying the searches all require warrants, while running a secret warrantless eavesdropping operation;

• The recent British memo showing Bush was determined to invade Iraq regardless of what inspectors found;

• Saying he would fire anyone found leaking secrets, when he knew full well who was doing the leaking because he had authorized it;

And so on.

An illustrative if otherwise unimportant example was Bush's silence, during the campaign, on his military service record.

Bush supporters argue, correctly, that Bush wasn't running on his military service and so did not need to talk about it. But given the security focus of the campaign and the questions swirling around John Kerry's service, it was reasonable for the media to ask about Bush's service so one could compare the two.

Me, I couldn't have cared less what he did while in the service. That was 30 years ago, in a different time, and he was a different person then. If he spent all of Vietnam high as a kite in an opium den, it wouldn't have mattered to me at all.

In response to questions, Bush released some of his military records. But those records raised more questions. And Bush's response to that? Silence. Complete silence.

This led to the odd spectacle of Bush supporters arguing about what the records did or didn't prove, as if they were dissecting the Kennedy assassination. Except that Bush was very much alive, and could have cleared up the controversy in minutes by simply stating what had happened back then.

But he didn't. And he got hammered for it. Which I found very interesting. It led to three possible conclusions:

1. He truly couldn't remember what he had done;
2. He remembers, and the truth would have done more political damage than stonewalling;
3. He has a reflexive "none of your business" attitude on some things.

The logical conclusion at the time was that he had something to hide. But now I wonder if it simply reflects a character flaw -- an "it's only illegal if you get caught" mindset that rejects the notion of public oversight of his activities. That would certainly explain a lot, including the irritated and occasionally whiny tone he often adopts when forced to explain himself.

So I think Specter's plea will fall on deaf ears. This administration is the most secretive in recent memory, and doesn't believe it needs to explain itself. So its supporters will continue to argue about what Bush did and didn't know, while the man himself sits silently on the sideline, refusing to speak.

Plame, leak, Specter, Bush, politics, midtopia

Bush, leaks and history

The New York Times has a nice perspective piece on Bush's role in leaking classified information.

The important quote for me:

Scott McClellan, the president's spokesman, disputed the charge of a double standard on leaks. "There is a difference between declassifying information in the national interest and the unauthorized disclosure" of national security information, Mr. McClellan said Friday.

I agree. But the key phrases there are "national interest" and what jeopardizes national security.

The president has the power to classify or declassify anything he wants. That makes it legal, but doesn't address whether it's right. If the president improperly classifies illegal information, then the proper thing for someone to do is illegally leak that information. That, in my opinion, is what happened in the cases of the secret CIA prisons and the NSA surveillance. No operational details were released in either instance, so it's hard to see how national security was jeopardized; the mere knowledge that these programs exist may be embarassing, but do not constitute security breaches.

But many critics refused to focus on the merits of the revelations, focusing instead on the narrow legal issue: "revealing classified information is a crime, period." They are right, but they miss the point that law and ethics don't always coincide.

The president comes across as seriously hypocritical when he condemns leaks while leaking himself, and narrowly legalistic defenses don't change that. He also comes across as a liar thanks to his public statements after the Plame affair came to light.

Finally, one can properly ask why, if Bush was willing to declassify information in the normal course of things, he didn't just declassify and release it but instead leaked it to a reporter. The answer, clearly, is that he had a political motive for releasing the information. This isn't in itself unethical; it only becomes a problem if the leak damages national security -- which it didn't -- or if one is hypocritical about such leaks -- which Bush was -- or if one lies about it -- which Bush did.

leak, Libby, Bush, politics, midtopia

Privacy vs. openness, continued

Following up on this post, the Star Tribune's reader representative, Kate Parry, lays out the case for preserving public access to government information.

A pitch-perfect quote from Thomas Ellington, a political science professor at Wesleyan College, turned up recently that crystalized why we've all got a stake in keeping our government -- the one we elect and pay for with our taxes -- as open to scrutiny as possible:

"It is certainly not the case that every secret hides a crook or a fool. But it is true that incompetence and corruption will always seek to cloak themselves in secrecy."

She doesn't stop there. She gives examples of the sort of stories the newspaper has done that relied on public records -- stories that might be impossible to do if Gov. Tim Pawlenty and Attorney General Mike Hatch get their way.

The privacy issue looks like it's being fast-tracked through the Legislature. If you care about holding our government responsible, call your representatives and tell them so.


Hatch, Pawlenty, privacy, Minnesota, politics, midtopia

Sizable increase in secret federal court cases

The AP reports that the number of federal court cases that are either fully or partly sealed has doubled in the last two years.

And in some cases the administration is resorting to unprecedented "secret dockets", where the mere existence of the case is officially denied.

Sealing records makes sense up until the trial, and that practice draws no criticism. What is unusual -- and damaging to the justice system -- is keeping records sealed after a trial has concluded.

Prosecutors argue that plea agreements must be sealed to protect witnesses and their families from violent retaliation. But Christ said that makes no sense after the trial when the defendants know who testified.

Exactly.

It's enough to make even a moderate scream "What is it with these guys?!" Yet one more example of the Bush administration's penchant for obsessive secrecy -- an obsession that has begun leaking out of the White House and Cabinet-level positions and into the everyday workings of the government.

To repeat: Excessive secrecy damages democracy, the justice system, foreign policy, the government, and a host of other national interests. It goes against the presumption of open government and the Sixth Amendment guarantee of public trials. It serves no purpose other than to shield government operations from public scrutiny.

Technorati tags
politics, midtopia, Bush, secrecy, courts

The right thing, four years late

In response to an Associated Press lawsuit, the Pentagon today released the names of all the inmates being held at Guantanamo Bay.

The names were scattered throughout more than 5,000 pages of transcripts of hearings in which detainees defended themselves against allegations that they were "enemy combatants." That classification, Bush administration lawyers say, deprives the detainees of Geneva Convention prisoner-of-war protections and allows them to be held indefinitely without charges.

Which sums up why it will be a great day for this country when the "enemy combatant" designation is retired for good.

"You can't just draw a veil of secrecy when you are locking people up," said Jamie Fellner, director of the U.S. program for Human Rights Watch. "You have to do at least the minimum, which is to acknowledge who you are holding."

Precisely.

I look forward to finding out what news organizations discover after poring through the data. I also hope many of the documents make their way online so we can examine them ourselves.

Technorati tags
terrorism, Guantanamo, civil liberties, civil rights, politics, midtopia

Archives halts reclassifying of documents

Speaking of government openness, in a follow-up to this post, the National Archives does the right thing.

After complaints from historians, the National Archives on Thursday directed intelligence agencies to stop removing previously declassified historical documents from public access and urged them to return to the shelves as quickly as possible many of the records they had already pulled.

Allen Weinstein, the nation's chief archivist, announced what he called a "moratorium" on reclassification of documents until an audit can be completed to determine which records should be secret.

What's sad is that this is even an issue in 2006.

Technorati tags
terrorism, national archives, politics, midtopia

Government data and privacy

Minnesota Gov. Tim Pawlenty has proposed removing public access to a lot of government data on individuals, on the grounds of protecting those individuals' privacy.

Pawlenty called for rewriting Minnesota's Data Practices Act to eliminate a presumption that all information governments collect is open for public inspection and replace it with a presumption that most personal information in government files is confidential.

(snip)

His plan also includes:

1. Barring the state from releasing, except in special circumstances, personal information it collects from driver's license applications.

2. Making it illegal for anyone to divulge another person's telephone records.

3. Barring private businesses from using Social Security numbers to identify patients or customers, and requiring companies to restrict employees' access to the Social Security numbers of their co-workers.

This could be a fascinating debate, turning as it does on two issues I hold dear: personal privacy and governmental openness.

Let's narrow the debate down to the important points. The three specifics above aren't very controversial, since they largely reflect current law. The biggest one is the driver's license data. It's already restricted, but the rules are interpreted to mean that media organizations can have access. That allows journalists to quickly double-check details on people in their stories, as well as do more general analyses of all sorts of demographic data. The media have a responsibility to use that access carefully -- a responsibility that could be made statutory. But completely eliminating media access to the database would be a mistake.

Rewriting the Data Practices Act is the biggie, one that could have far-reaching implications, and isn't something to be done lightly.

It can already be difficult to get public information from the government; a 2000 survey by a group of Minnesota journalists found that many governmental bodies refused to release information that was clearly public domain:

57% of county jails refused access to the names of prisoners. Itasca County charged $5 per inmate for the information -- which is supposed to be free except for a nominal copying charge.

28% of school districts refused to reveal the superintendent's salary.

2% of City Hall officials refused to allow access to the minutes of council meetings.

The survey demonstrated that despite a law that says otherwise, many public employees are reluctant to share indisputably public data with citizens. A new, more restrictive law would just provide a whole raft of new reasons to deny access to legitimately public data.

And that's *if* the law includes a very careful definition of what is public and what isn't. A vaguely written law would just compound the problem.

Why should we care? Two reasons. One, open access to government information is one of the most important ways we have to keep tabs on our government. If we allow it to operate in secrecy, oversight becomes nearly impossible.

Second, much useful research -- on health, on crime, on population growth, on infrastructure -- relies on access to government data. It may be possible to allow access to aggregate but not individual data, but in some cases even that would not be enough. Sometimes you have to know the individual data in order to make sense of the aggregate results.

I applaud the governor's concern for privacy. I just think his sledgehammer approach is a very careless one that practically guarantees massive unintended consequences. Rather than presume all data is private, a better approach would be to carve out narrow, specific exceptions for certain data -- much as driver's licenses are handled now.

Technorati tags
pawlenty, minnesota, privacy, politics, midtopia

U.S. reclassifying National Archive documents

The government continues to exhibit its penchant for excessive secrecy:

WASHINGTON, Feb. 20 -- In a seven-year-old secret program at the National Archives, intelligence agencies have been removing from public access thousands of historical documents that were available for years, including some already published by the State Department and others photocopied years ago by private historians.

(snip)

Mr. Leonard said he ordered the audit after reviewing 16 withdrawn documents and concluding that none should be secret.

"If those sample records were removed because somebody thought they were classified, I'm shocked and disappointed," Mr. Leonard said in an interview. "It just boggles the mind."

Things like this are why I'm generally unimpressed by the mere fact that a leaked document is classified. The government routinely classifies stuff that has no business being classified. Leaking such information is against the letter of the law, but it does not violate the law's spirit, nor is it unethical or treasonous.

To determine if a leak is wrong, you have to first determine if the information in question deserved to be secret to begin with. Allowing the government to keep every little thing secret makes it impossible to know what the government is up to, and thus impossible to monitor or regulate it. This can be poisonous to democracy.

For instance, here's an example of a "reclassified" document:

a 1962 telegram from George F. Kennan, then ambassador to Yugoslavia, containing an English translation of a Belgrade newspaper article on China's nuclear weapons program.

Government information should be viewed with the presumption that it is a public record, and only classified if the administration can show sufficient cause. This is in fact the case:

Under existing guidelines, government documents are supposed to be declassified after 25 years unless there is particular reason to keep them secret.

But without oversight and review, nothing stops an official from classifying anything they want.

Technorati tags
national archives, terrorism, politics, midtopia