Reason Magazine - Topics > Transparency in Government

Can the Law Be Copyrighted?

kmw@reason.com (Katherine Mangu-Ward) — Wed, 03 Sep 2008 15:40:00 EDT

In California, the law is copyrighted. Meaning copying and distribution are limited. Openness crusader Carl Malamud is displeased by this. So he's trying to get sued.

On Labor Day, he posted the entire 38-volume California Code of Regulations, which includes all of the state's regulations from health care and insurance to motor vehicles and investment.
To purchase a digital copy of the California code costs $1,556, or $2,315 for a printed version. The state generates about $880,000 annually by selling its laws, according to the California Office of Administrative Law.

Listen to a pretty good, anecdote-packed Google talk by Malamud, who forced the SEC to put their corporate filings online in 1994, here.

Via Tim Kirk

Politicized Justice

schapman@tribune.com (Steve Chapman) — Thu, 26 Jun 2008 17:00:00 EDT

In his zest to purge enemies in the government, Richard Nixon was so thorough that he set out to remove a "Jewish cabal" at the Bureau of Labor Statistics. President Bush and his subordinates may match Nixon for paranoia. Some of them lay awake nights wondering how to keep ideologically questionable applicants from infiltrating the Justice Department's summer internship program.

According to the department's inspector general in a report issued this week, they had some success in heading off this potential catastrophe—eliminating many candidates with subversive affiliations like Human Rights Watch and Amnesty International. But the report condemned the effort, finding that it involved official misconduct and broke the law.

Political abuses in the summer internship program may be no more than a minor threat to honest government. The same cannot be said of abuses in the hiring and firing of federal prosecutors, which the inspector general is also investigating. Back in 2006, the Justice Department abruptly dismissed nine U.S. attorneys, some apparently because they declined to prosecute certain Democrats.

One of those fired was David Iglesias of New Mexico, who was shown the door after deciding not to seek indictments in a case involving a Democratic state senator—and after getting ominous phone calls from congressional Republicans asking how the case was proceeding.

Another was Todd Graves, who had refused to file a vote fraud case against the state of Missouri. His successor filed it, but Graves was vindicated when a federal court tossed it out for lack of evidence.

That successor is now contemplating the criminal justice system from a different vantage. Bradley Schlozman, The Wall Street Journal reported recently, could be the target of a grand jury investigation stemming from possible perjury in his testimony on Capitol Hill.

He may not be the only one who will get to know federal prosecutors in an entirely new way. The New York Times disclosed that a federal grand jury has "begun to examine statements by Justice Department officials about hiring decisions in the civil rights division, where some employees said they were subject to a political litmus test."

The 2006 firings violated a long tradition of independence for U.S. attorneys, who are appointed by the president but actually work for the people. It betrayed a zeal to use government power to advance partisan purposes at the expense of justice.

It also confirmed the remark by John DiIulio, a conservative scholar who quit as head of the White House Office of Faith-Based and Community Initiatives after making an unpleasant discovery: "What you've got is everything, and I mean everything, run by the political arm."

If you want to know the source of Barack Obama's success, look no further. Republicans think they will win once Americans figure out he's more liberal than he sounds. But Obama's appeal lies less in any supposedly moderate ideology than in his rejection of a corrosive but prevalent view: Government is nothing more than partisan warfare, and may the stronger side win.

The Bush administration thinks every aspect of governance should serve the ends of the Republican Party. Obama says—and may even believe—that some matters should be above politics.

In the case of federal prosecutors, that is not a new view but an old one. U.S. attorneys are political appointees but not, traditionally, political agents. They are supposed to advance justice without fear or favor. To turn them into partisan attack dogs is to make the law merely a weapon of those in power.

Republicans may dismiss such notions as 8th-grade civics tripe, or as sour grapes from those whom the American people have wisely kept out of the White House. But it also happens to be the view of Bush's former deputy attorney general, James Comey.

In testifying before Congress about the intrusion of politics into the hiring of career prosecutors, he said, "If that was going on, that strikes at the core of what the Department of Justice is...It deprives the department of its lifeblood, which is the ability to stand up and have juries of all stripes believe what you say and have sheriffs and judges and jailers—the people we deal with—trust the Department of Justice."

Public trust was once something the department could take for granted. It would be nice if, four years from now, it is again.

Coup Calling

mriggs@reason.com (Mike Riggs) — Mon, 23 Jun 2008 14:42:00 EDT

Sunday’s Washington Post featured an op-ed by Paul Collier, professor of economics at Oxford University and author of The Bottom Billion, who advocates for a coup in Zimbabwe:

So how can the grossly excessive powers of the Mugabes and Shwes of the world be curtailed? After Iraq, there is no international appetite for using the threat of military force to pressure thugs. But only military pressure is likely to be effective; tyrants can almost always shield themselves from economic sanctions. So there is only one credible counter to dictatorial power: the country's own army.

Collier wisely notes that the international community has lost its “appetite” for military interventionism, not only in places where it has failed—Iraq and Afghanistan, most recently—but also in places where human rights abuses are happening and Western nations don't have a clue how to curb them—Darfur, Tibet, Myanmar, Equitorial Guinea, Democratic Republic of Congo, and well, Zimbabwe.

Regardless of the U.N.’s reticence, Collier argues, a coup backed by Europe or America, and led by the opposition party, Movement for Democratic Change (MCD) and Zimbabwe’s military discontents, could take Zimbabwe from dictatorship to democracy quicker than an election:

A truly bad government in a developing country is more likely to be replaced by a coup than by an election: Mugabe will presumably rig the runoff vote scheduled for Friday by intimidation. Or he could follow the example of the last Burmese dictator, who held an election, lost and simply ignored the result.

Calls for a coup are expressions of frustration that Zimbabwe has devolved from the most economically promising country in Black Africa to the most economically depressed, but violent coups in Uganda, Ghana, Nigeria, Togo, and Congo (to name but a few) left those countries worse off than before their militaries took the reigns. Ironically, four years ago Paul Collier wrote a very different piece for Foreign Policy, which noted coups occur frequently—and fail just as often:

From 1956 to 2001, only three nations (Botswana, Cape Verde, and Mauritius) did not experience any coups or coup attempts. Overall, 30 African nations experienced 80 successful coups in that period; all of these states, except for the Seychelles, also faced failed coups and plots. Yet coups usually settled nothing; rather, they encouraged other military factions to try their luck. Indeed, 89 percent of African coup attempts during this period targeted military regimes that had themselves staged successful coups earlier.

There’s also the issue of who could legitimately back a coup in Zimbabwe: A unilateral western presence would come across as self-interested, geopolitical meddling at worst, waxing Colonial at best; a multilateral force would likely drown in its own bureaucratic bumbling. There's also the African Union and/or South Africa, but where are they now, and where were they three months ago when the assassinations started?

With yesterday’s news that Morgan Tsvangirai of the MDC—the only viable opposition candidate in Zimbabwe’s upcoming presidential election—has decided to drop out of the race after a rash of state-sponsored assassinations and beatings, now’s the time to reconsider effective, responsible, and nonviolent methods for promoting economic and personal freedom at home and abroad.

Associate Editor Dave Weigel wrote here about Mugabe's campaign to keep Tsvangirai behind bars.

White House Wins in FOIA Email Case

rbalko@reason.com (Radley Balko) — Tue, 17 Jun 2008 08:45:00 EDT

A federal judge gives the White House cover in hiding how it lost millions of emails:

A federal judge ruled Monday that a White House office that has records about millions of possibly missing e-mails does not have to make them public.
U.S. District Judge Colleen Kollar-Kotelly says the Office of Administration is not subject to the Freedom of Information Act, enabling the White House to maintain the secrecy of a lengthy internal paper trail about its problem-plagued e-mail system.
The decision came in a lawsuit filed against the administration by Citizens for Responsibility and Ethics in Washington, a private group that has been trying to find out the extent of the White House's e- mail problems for more than a year.
The functions of the Office of Administration "are strictly administrative," Kollar-Kotelly ruled.
Kollar-Kotelly said the Office of Administration has no authority over others in the executive branch and that the office is exclusively dedicated to providing services to the Executive Office of the President. Since its creation in 1978, the Office of Administration has responded to FOIA requests. But the Bush White House reversed that policy in August 2007 in the lawsuit filed by CREW.

Just so we're clear, here: The purpose of FOIA is to make the federal government more accountable and transparent. For 30 years, the Office of Administration has been subject to FOIA. But once they discovered that the Office of Administration may have paperwork showing how or why the Bush administration was able to dispose of millions of possibly incriminating emails, the White House conveniently decided the office was no longer subject to FOIA.

And a federal judge has now agreed, ruling that because the office is "strictly administrative" in function it can ignore FOIA requests, even if it has information that could show wrongdoing on the part of officials in the executive.

Up From the Depths

info@reason.com (Jeff Taylor) — Fri, 18 Apr 2008 12:00:00 EDT

The latest sign of trouble in America's stressed credit system can be found not in some arcane Wall Street hedge fund, but deep in Alabama. There the mundane civic chore of providing water and sewer service drove one county to the edge of bankruptcy and sent federal regulators into a tizzy.

On Tuesday, creditors, led by JP Morgan and urged on by the feds, hammered out an agreement with Jefferson County, Alabama officials to avoid default on some $3.2 billion in public sewer bond obligations. For now, the county has another 30 days to come up with a $53 million payment. As financial mishaps go, it's perhaps not the sexiest storyline. But that is precisely what should scare anyone who has followed the way local governments have thrown debt around this decade.

Much like home buyers seduced by the largest possible mortgage, local officials were wooed by bankers and bond underwriters to float the largest possible debt they could afford. Given historically low interest rates, on one level it was good advice. But it is also true that—exactly as in the mortgage making market—the bigger the debt, the bigger the commission for the banks and bond traders.

However, unlike a home purchase with a borrower and lender, the ratepayers and taxpayers who ultimately have to stand behind and payoff any deals gone bad are left out of the loop. The finances are often complex and local media outlets seldom have reason to delve into the specifics. And local officials are typically most concerned with how much they can build with the money and what constituents they can "service" with the new debt.

This is particularly true when water and sewer service, or an airport, or some other revenue-generating unit of government is set up as a separate enterprise fund. Too often this confuses lines of responsibility and obscures total public obligations to pay for things. Of course, bond sellers like the enterprise fund and dedicated revenue streams concept. They provide slightly lower interest rates in exchange for the perceived "sure thing" of dedicated revenue. And then localities often turn around and take the lower rate in order to increase the total amount they borrow. Just like house-hungry consumers who bit on low, low introductory rates.

However, this local aspect of chasing big money was glossed over in many accounts of the Jefferson County trouble, with focus instead on the change in the debt rating brought on by the failure of bond insurers. This had the effect of jumping the interest payment on the debt to $250 million a year, swamping the $138 million in revenue the system collects. But bad luck, bad timing, or even incompetence on interest rates swaps it not the only way local utilities can come up short.

A couple weeks ago my stomping ground of Charlotte, NC was confronted with a $30 million projected shortfall in water and sewer revenue. Debt payments would have to be restructured as a result—or more precisely, the local utility would be in violation of covenants made to bond holders. Such covenants or promises to maintain a certain capital position or cash flow are another way local governments have priced their debt loads for perfection in recent years.

In exchange for the promises, the utility or fund receives a lower interest rate. And what do they do with the lower interest rate? Borrow more. And who gets bigger commissions?

In Charlotte's case, the shortfall was resolved—one that was induced by mandatory water usage limits enforced by the city under threat of fine, a wonderfully top-down response to drought—by hiking water rates by 16 percent. Looking across the country, rates are also going up from Oregon to Vermont, often in response to a need to finance additional the construction of capacity.

The great unknown is the extent to which these new debt issues—together with recurring obligations—are not ready for a new credit marketplace in which risk is rapidly being reprised. The only sure thing is that those who sit at the table and make the deals will not be asked to make up any shortfall.

Jeff Taylor writes from North Carolina.

Chesapeake Police Chief Retires

rbalko@reason.com (Radley Balko) — Sun, 30 Mar 2008 16:46:00 EDT

The police chief in Chesapeake, Virginia is retiring. Probably for the better, given this bit from the article:

He helped create six community advisory groups but stopped short of citizen oversight, which would have allowed citizens to investigate policy and complaints.
That did not sit well with the Chesapeake chapter of the National Association for the Advancement of Colored People. March Cromuel Jr., president of the chapter at the time, said he believed oversight would build community trust.
"I would like to see cameras in all police cars and a citizen review board before he leaves," Cromuel said.
Justice opposed it, and still does. "At any time, a complaint can be lodged against us that can bring in the state police, the FBI. The department is open. We don't operate in any clandestine fashion now. We can't have citizen groups running a police department," he said.

Never mind that the police department actually works for the citizens. So no cameras in patrol cars, and no citizen review boards.

I'd beg to differ about Chesapeake PD not operating in a "clandestine fashion." A few weeks ago, based on a tip from some people I spoke with during my visit to Chesapeake, I filed an open records request asking for any internal investigations of "wrong door" raids conducted by Chesapeake PD. I also asked for any complaints filed against the late Det. Jarrod Shivers. My interest is to see if there's a pattern of the department's narcotics officers taking shortcuts, and conducting forced entries raids without doing the appropriate corroborating investigation, as certainly seems to be the case in the raid on Ryan Frederick's home.

I was told that all personnel matters at the department are confidential. All complaints against individual officers are confidential, all internal investigation into officers misconduct are confidential, and any records of internal investigation into mistaken or botched narcotics raids are confidential. It's all confidential. Not only that, but that confidentiality follows an officer to the grave. And it applies even in cases like Ryan Frederick's, where the suspect is facing life in prison or the death penalty, and where the case boils down to weighing the suspect's credibility against that of the police officers who raided his home. All confidential.

It's probably good for Chesapeake that this guy is retiring. And even better that the city manager has ordered a top-down review of police department procedures.

Summary of the Frederick/Shivers case here.

Stealing Our Sunshine

rbalko@reason.com (Radley Balko) — Thu, 20 Mar 2008 09:09:00 EDT

It's Sunshine Week.

Seem like as good a time as any to look at the Bush administration's continuing efforts to duck Freedom of Information Act requests. Last summer, you might remember that in response to requests for White House emails related to political fundraising, the administration tried to argue that the White House Office of Administration wasn't subject to FOIA, despite the fact that the office has a compliance officer and had posted on its website guides to FOIA procedures.

In response to that and other complaints about the administration's paltry FOIA compliance, Congress passed a bill late last year setting up a FOIA ombudsman to serve as a liaison between federal agencies and FOIA petitioners. The ombudsman would report to the National Archives and Records Administration. Bush reluctantly signed the bill late last year, but just weeks later slid a provision into his budget proposal that would move the ombudsman to the Justice Department. The Justice Department represents the administration in FOIA litigation. In fact, the Washington Post reports that the entire administration is still under a DOJ directive from 2001 instructing all federal agencies to lose all legal channels available to duck as many FOIA requests as possible. Bush wants the ombudsman to report to the people doing everything they can to undermine the people the ombudsman is supposed to represent.

The Treasury Department seems to have gotten the memo. The Department is this year's winner of the "RoseMary Award," presented by the National Security Archive to the least transparent federal agency over the previous year. It's named after Rose Mary Woods, Richard Nixon's secretary who famously erased 18 1/2 minutes of Watergate tapes. The Treasury apparently routinely unceremoniously destroys FOIA requests after stalling on them for months, sometimes years, at a time. One request is 21 years old.

On the flip side, it look as if the Bush administration is ready to bring back Total Information Awareness, albeit under a new name and slightly different auspices, to get around the minor inconvenience that the original TIA was actually banned by Congress.

Privacy in this administration seems to only apply to people working in their official capacity for the government, while "transparency" only applies to the citizenry.

The RateMyCop Saga

rbalko@reason.com (Radley Balko) — Fri, 14 Mar 2008 08:05:00 EDT

So even as police departments across the country are setting up sex offender registries, drug offender registries, and posting the mugs and names of suspected johns online, they also took a great deal umbrage early this month when Gino Sesto set up a site called RateMyCop.com. The premise is simple: Sesto wrote to police departments across the country, and obtained a list of the names and badge numbers of their officers. He then posted the names online in a format broken down by state and city, and encouraged users to rate their experiences with individual officers. All of the information he posted was already open to the public. He didn't post the identities of any undercover officers.

Police groups went nuts, making the dubious argument that posting the publicly-available names and badge numbers of police officers on the Internet somehow jeopardized the safety of individual officers. Sesto said he had even planned on adding a feature that would allow individual officers to write responses to complaints made against them. But police groups persisted.

Jerry Dyer, president of the California Police Chiefs Association, told Wired the site could give citizens the opportunity to "unfairly malign" individual officers, and said he'd be asking the legislature to pass a law making sites like RateMyCop.com illegal.

Last week, it all got weirder. Hosting service GoDaddy mysteriously terminated Sesto's account, and pulled RateMyCop.com offline. GoDaddy has offered several explanations to Wired's ThreatLevel blog, but thus far, none of them have made much sense. Sesto gave up on GoDaddy, and next tried to get the site hosted at RackSpace. They turned him down. After initial accepting his down payment for hosting services, a RackSpace lawyer sent a letter to Sesto stating that, "We believe that the website to be found at www.ratemycop.com as described to our sales representative could create a risk to the health and safety of law enforcement officers."

The good news is, the site's back up, now, though it isn't clear who's hosting it.

Me, I think police departments should be required to post all citizen complaints against individual officers online in a searchable database. Individual officers, their union reps, or their departments could post responses or explanations to frivolous claims. Police officers are public servants. Not only that, they're public servants with the power to arrest, detain, and use lethal force. If certain officers are the subject of repeated complaints and aren't being properly investigated internally, the public ought to be informed of that. This culture of secrecy—and of intimidating anyone who dares question it—isn't healthy.

More From Mississippi

rbalko@reason.com (Radley Balko) — Wed, 05 Mar 2008 11:17:00 EST

The national Innocence Project and the Mississippi Innocence Project have sent open records requests to every district attorney in the state of Mississippi. The request asks for a copy of every autopsy embattled medical examiner Steven Hayne has performed on their behalf at Mississippi's state crime lab facility in Jackson.

Though Hayne is not a state employee, he began conducting his marathon, all-night autopsy sessions at the state facility a few years ago. In the 15 or so years prior to that, he did all of his autopsies at a funeral home owned by Rankin County Coroner Jimmy Roberts. My sources say Hayne and Roberts had a falling out in roughly 2005, leading Hayne to move his operation to the state lab.

So while Mississippi has gone 14 years without an official state medical examiner (even though the position is mandated by state law), the state nevertheless allowed Hayne, a private doctor, to move into the official state lab to conduct autopsies, despite that the fact that he isn't board certified, and therefore is barred from holding the position that's supposed to be using that facility.

The way the open records request is phrased is interesting. The idea is that because Mississippi's state crime lab gets federal funding, there may be cause to call for a federal investigation if Hayne is doing fraudulent work at the federally-subsidized lab. You might actually be able to argue that the sheer number of autopsies he does on a daily basis alone amounts to fraud, or at least to a kind of de facto negligence.

Mississippi does have a notably stingy open records law, so it'll be interesting to see what kind of compliance the Innocence Project gets. While researching my article on Dr. Hayne, I had a very basic, unintrusive request denied on bogus privacy grounds. But perhaps the Innocence Project's high-profile will exert some extra public pressure and scrutiny on state officials to turn over the records.

The Innocence Project also has a nice summary of coverage of the Hayne scandal thus far here.

Finally—and most importantly!—my coverage of Hayne and bite mark quack Dr. Michael West made "News of the Weird" this week.

Mississippi Gets an "F" in Transparency

rbalko@reason.com (Radley Balko) — Sun, 24 Feb 2008 07:46:00 EST

When I was researching my article on Mississippi medical examiner Dr. Steven Hayne, I made an open records request to Mississippi's state crime lab. My query was pretty simple: I asked for the number of autopsies Dr. Hayne performed on a specific date. I didn't ask for copies of the autopsy reports, or the names of the people he performed the autopsies on. That information is generally available in other states. But I didn't want to give Mississippi's Department of Public Safety the chance to turn me down. So I only asked for a number.

They turned me down anyway. Their reason? Even giving me a number would violate the privacy of the deceased persons on whom the autopsies were performed. Absurd, no?

So this bit of news from Editor & Publisher isn't terribly surprising:

Eddie Stephenson, an insurance agent in Hattiesburg, has tried to find out details about the February 4, 2005, death of his son, Matthew, who wrecked his vehicle while being chased by Lamar County deputies. Stephenson requested radio and dispatch logs and accident and investigative reports, but officials refused.
"I feel like my civil rights have been violated because they won't give me this information," Stephenson said.
He spent more than two years fighting for the logs and reports, even filing a lawsuit that was settled last year. Under the agreement, he cannot disclose details of the settlement.

A number of people have told me similar stories about the problems they've encountered while trying to obtain records of loved ones on whom Dr. Hayne has performed autopsies.

But Mississippi isn't alone.

Mississippi is one of 38 states that got an "F" in the 2007 study by the Better Government Association and the National Freedom of Information Coalition.
"These kinds of sunshine matters, unfortunately, generally are not high priority with an individual citizen until he or she is personally impacted," said Leonard Van Slyke, a Jackson attorney who represents news organizations in Freedom of Information lawsuits. "But when that day arrives, that person is generally appalled with the lack of recourse."

I ran into problems in this area, too:

Campaign finance records have been a constant source of complaints from government watchdogs who say Mississippi requires too little disclosure. A national study by the Pew Charitable Trusts, the Center for Governmental Studies, the UCLA School of Law and the California Voter Foundation gives Mississippi a failing grade because the state does not require candidates to file campaign finance forms that are in a searchable, electronic form.

And that's for statewide office. It's basically impossible to track down donations to the campaigns of county coroners.

And even these easily circumventable rules are relatively toothless. The fine for knowingly violating Mississippi's public records law is all of $100. Not much to pony up if you're a government official with something to hide.

Preventing Online Poker a Matter of "National Security"

rbalko@reason.com (Radley Balko) — Tue, 05 Feb 2008 11:45:00 EST

In December, the U.S. Trade Office announced it had reached an agreement with Europe, Japan, and Canada that would involve the U.S. making major trade concessions in order to both keep its ban on Internet gambling, and simultaneously allow exemptions to that ban for state lotteries and horse racing. The agreement meant that the U.S. was willing to force U.S consumers and businesses to pay so that the federal government could prevent U.S. citizens from playing poker online.

Strangely, the federal government also refused to release the terms of the settlement. So Ed Brayton filed a FOIA request with the U.S. Trade Office to release the terms of the settlement. They responded this week. They have refused to disclose the details "in the interests of national security."

The State Secrets Protection Act

bdoherty@reason.com (Brian Doherty) — Fri, 25 Jan 2008 19:55:00 EST

The ACLU welcomes a bill introduced by Ted Kennedy that will, supposedly, make it easier to challenge executive branch claims of "state secrets" to cover its legal ass. From its press release:

Senator Kennedy’s bill allows the court to review government national security claims, thus lowering the wall of the current state secrets privilege to just a hurdle. The current form of the privilege has allowed the administration to successfully hold off investigations into its extraordinary rendition program and its warrantless wiretapping program. The cloak must be lifted and we urge Congress to waste no time in passing Senator Kennedy’s bill.

Sen. Kennedy's own explanation, with detailed section-by-section summary, of the bill he introduced with Sen. Arlen Spector (R-Penn.). An excerpt:

In 1980, Congress enacted the Classified Information Procedures Act (CIPA) to provide federal courts with clear statutory guidance on handling secret evidence in criminal cases. For almost 30 years, courts have effectively applied that law to make criminal trials fairer and safer. ......

Yet in civil cases, litigants have been left behind. Congress has failed to provide clear rules or standards for determining whether evidence is protected by the state secrets privilege. We’ve failed to develop procedures that will protect injured parties and also prevent the disclosure of sensitive information. Because use of the state secrets privilege has escalated in recent years, there’s an increasing need for the judiciary and the executive to have clear, fair, and safe rules.

................

The State Secrets Protection Act we are introducing responds to this need by creating a civil version of CIPA. The Act provides guidance to the federal courts in handling assertions of the privilege in civil cases, and it restores checks and balances to this crucial area of law by placing constraints on the application of state secrets doctrine......

.....the Act enables the executive branch to avoid publicly revealing evidence if doing so might disclose a state secret. If a court finds that an item of evidence contains a state secret, or cannot be effectively separated from other evidence that contains a state secret, then the evidence is privileged and may not be released for any reason. Secure judicial proceedings and other safeguards that have proven effective under CIPA and the Freedom of Information Act will ensure that the litigation does not reveal sensitive information.

At the same time, the State Secrets Protection Act will prevent the executive branch from using the privilege to deny parties their day in court or shield illegal activity that is not actually sensitive. A recently declassified report shows that the executive branch abused the state secrets privilege in the very Supreme Court case, United States v. Reynolds (1953), that serves as the basis for the privilege today. In Reynolds, an accident report was kept out of court due to the government’s claim that it would disclose state secrets. The court never even looked at the report. Now that the report has been made public, we’ve learned that in fact it contained no state secrets whatever—but it did contain embarrassing information revealing government negligence.

In recent years, federal courts have applied the Reynolds precedent to dismiss numerous cases—on issues ranging from torture, to extraordinary rendition, to warrantless wiretapping—without ever reviewing the evidence.

The full text of the "State Secrets Protection Act" (S. 2533) was not yet up on Thomas.loc.gov on first posting.

Matt Welch from Jan. 2006 on even more ugly aspects of how U.S. v. Reynolds's b.s. precedent has been applied--in one case, to rob an inventor of his rights. Jacob Sullum from Aug 2006 on the Bush administration's overenthusiastic use of "state secret" privilege.

Hillary's Secrets

rbalko@reason.com (Radley Balko) — Fri, 02 Nov 2007 10:42:00 EDT

Hillary Clinton has (correctly) excoriated the Bush administration for its excessive secrecy. I've pointed out (as have others), however, that her own record and that of her husband don't exactly scream transparency and open government.

Neither does this:

Smith was hoping to inspect records that could shed light on what role the First Lady played in her husband's administration. But Smith quickly discovered the frustrations of dealing with a library critics call "Little Rock's Fort Knox."
[...]
Could she look at memos detailing the advice Hillary gave Bill during debates over welfare reform? Smith asked. No, the archivist said, those memos were "closed" to the public because they dealt with "policy" matters. What about any records that show what advice Bill gave his wife about her 2000 U.S. Senate campaign? Those, too, were closed, the archivist said, because they dealt with "political" matters. "He essentially told me I had no chance of getting anything," says Smith, whose book, "For Love of Politics: Bill and Hillary Clinton, the White House Years," hits the bookstores this week.
[...]
The lack of access is emerging as an issue in Hillary's presidential campaign: she cites her years of experience as First Lady as one of her prime qualifications to be president. Like other Democratic candidates, she has decried the "stunning record of secrecy" of the Bush administration; her campaign Web site vows to bring a "return to transparency" to government. But Clinton's appointment calendar as First Lady, her notes at strategy meetings, what advice she gave her husband and his advisers, what policy memos she wrote, even some key papers from her health-care task force—all of this, and much more documenting her years as First Lady, remains locked away, most likely through the entire campaign season.

Rip, Mix, Vote

jwalker@reason.com (Jesse Walker) — Wed, 31 Oct 2007 16:13:00 EDT

What does government transparency have to do with remix culture? Everything, argues Jerry Brito in a paper for the Mercatus Center:

If government information was made public online and in standard open formats, the online masses could be leveraged to help ensure the transparency and accountability that is the reason for making information public in the first place.

When the government makes data available in a structured format, it opens the doors to innovative and enlightening remixes of information known as mashups. Mashups, in turn, are tools that can potentially be used by journalists, bloggers, and citizens...to better scrutinize government's activities. When government does not make data available online, or makes it available but not in a structured format, third parties take it upon themselves to fill the void by implementing ingenious "hacks" to free the data.

You can download the full paper here. To read about some of those third parties striving valiantly to free the data, go here.

About That Whole "Mistakenly Torturing You" Stuff? Yeah. Tough Luck.

rbalko@reason.com (Radley Balko) — Tue, 09 Oct 2007 14:05:00 EDT

Khalen Masri won't be getting his day in court.

The Supreme Court today refused to give a hearing to a German man who says he was wrongly abducted, imprisoned and tortured by the CIA in a case of mistaken identity.

Khaled Masri sued the CIA two years ago and sought damages for his five-month ordeal in a U.S.-run prison in Afghanistan.
But Bush administration prosecutors said his lawsuit should not be heard because it could expose "state secrets," and two lower courts ordered it dismissed.

He appealed to the Supreme Court and argued that the government was using the state secrets doctrine to cover up its wrongdoing.

Without explaining their reasons, the justices said today that they would not hear his appeal in Masri vs. United States.
[...]
Masri, a car salesman, was on vacation when he was taken off a bus that had crossed the border into Macedonia. His passport was confiscated, and he was questioned for more than three weeks.

In late January 2004, Masri said he was blindfolded, taken to the airport and turned over to U.S. authorities, who flew him to a prison in Afghanistan. He says he was beaten and tortured by men who wore masks and were dressed in black.

He also says U.S. authorities would not permit him to contact the German Consulate. After several months, the CIA apparently realized it had made a mistake, and Masri was returned to Europe. But rather than return him to his home in Germany, he was dropped off at night on a hillside in Albania.

This is really shameful.

And given the rather loose criteria by which the Bush administration determines what are and aren't "state secrets," the decision to let the lower rulings stand sets a rather chilling precedent.

"What does 'ultimate deference' mean? Bow to it?"

rbalko@reason.com (Radley Balko) — Mon, 17 Sep 2007 09:15:00 EDT

Terrific op-ed in the LA Times over the weekend by Barry Siegel on the Bush administration's frequent use of the state secrets privilege.

Between 1953 and 1976, the government invoked the privilege in only five cases; between 1977 and 2001, in 59 cases. In the last six years, the Bush administration has invoked it 39 times, according to the best available count -- or more than six times every year. Along with the numbers, the scope and definition of what constitutes a state secret has expanded -- now including what one judicial decision described as "bits and pieces of seemingly innocuous information" that might form a revealing "mosaic."

Government lawyers have found that merely waving the Reynolds flag in the background for effect gains them deference from judges. Rarely has a court rejected a government claim of privilege.
[...]
Over time, the desire to protect military secrets has started to look a good deal like the impulse to cover up mistakes, avoid embarrassment and gain insulation from liability.

But a few federal judges are finally getting fed up:

In the summer of 2006, U.S. District Judge Vaughn R. Walker in San Francisco and District Judge Anna Diggs Taylor in Detroit ventured to deny government state secrets claims in the domestic surveillance and eavesdropping cases. "It is important to note that even the state secrets privilege has its limits," Walker wrote. "While the court recognizes and respects the executive's constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. . . . To defer to a blanket assertion of secrecy here would be to abdicate that duty."
[...]
Pregerson wondered what roles judges were to play when the executive branch invoked state secrets: "Who decides whether something is a state secret or not?"

Hearing the deputy solicitor general talk of "ultimate deference" due the executive branch, Pregerson asked: "What does 'ultimate deference' mean? Bow to it?"

A Rationale for Open Secrets

jsullum@reason.com (Jacob Sullum) — Mon, 27 Aug 2007 11:25:00 EDT

In a New York Times op-ed piece, former CIA employee Joseph Weisberg explains why "classified information is not the same thing as secret information." Weisberg says even widely known information, such as the fact that intelligence agents often pretend to be diplomats (a practice to which Weisberg only alludes, because his former employer would not let him discuss it explicitly), may be classified if confirming it would create operational difficulties. According to Weisberg, agency guidelines allow classification of pretty much anything:

When I worked in the C.I.A.'s directorate of operations (now called the national clandestine service) in the early '90s, we were told that information was classified when it involved sources or methods. It seemed logical that sources were classified. These were actual agents who would be put in jeopardy if their identities were revealed.

But practically everything the C.I.A. does could be considered a "method," so the C.I.A. can decide that almost anything relating to its work is classified. You'd probably want this latitude if you were running an intelligence agency. But one of its unfortunate byproducts is that no one, inside or outside the intelligence community, really knows what classified information is.

Still, Weisberg sees loose classification rules as a good thing on balance, since there may be sound reasons why the CIA declines to confirm public information. It's hard to see how this rationale fits the example with which Weisberg begins: The CIA would not let Valerie Plame specify the dates of her service in her new book, even though the agency itself provided that information in an unclassified letter that was published in the Congressional Record. And there's clear potential for abuse if the CIA classifies anything that might make life harder for the CIA, since that would include keeping secrets to avoid compromising illegal "methods" or simply to avoid embarrassing the agency.

White House Not Subject to FOIA?

rbalko@reason.com (Radley Balko) — Fri, 24 Aug 2007 09:15:00 EDT

Via commenter Shawn Smith, the Justice Department is responding to a lawsuit regarding some 5 million missing White House emails dating from 2003 to 2005 by arguing that the White House Office of Administration is not subject to Freedom of Information Act requests. As Ed Brayton notes, that's more than a bit odd, considering...

The Department of Justice list of contacts for FOIA requests includes a contact person in the Office of Administration; her name is Carol Ehrlich and she even has a title - FOIA officer. How odd that an agency that is not subject to the FOIA would have an FOIA officer to handle requests they're not subject to.
Even more odd that the White House website has documentation on the Office of Administration answering FOIA requests (here's the report for FY 2006). Indeed, the White House website for the Office of Administration contains a whole section on FOIA requests, including a list of documents that were "specifically identified for inclusion by the Freedom of Information Act (FOIA), as well as documents for which we have received multiple FOIA requests.
In fact, they have a whole document with their administrative rules for how they comply with FOIA requests and that document requires the Office of Administration to comply with FOIA rules.

As Brayton explains, what the Justice Department probably meant to argue is that the White House Office of Administration should be exempt from FOIA requests when the Justice Department and the White House determine that those requests could be politically damaging to the president.

But that's a tougher point to argue. What more would you expect from the most secretive administration in U.S. history?