Disappearing Act  | American Journalism Review
 AJR  Columns :    FIRST AMENDMENT WATCH    
From AJR,   June/July 2006

Disappearing Act   

The Bush administration is going to great lengths to hide information that once had been public.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     


The Bush administration can't stand it when the press reveals something it wanted to keep under wraps. It's determined to find out who exposed the National Security Agency's domestic wiretapping program to the press. And when the CIA announced in late April that it had fired intelligence officer Mary McCarthy for unauthorized contact with journalists, the message to government employees was hard to miss: If you dare to talk to reporters, we'll find you, and you'll lose your job.

Not that this is new. Governments have always tried to keep their employees from blowing the whistle, and they usually cite threats to national security to justify it. No one knew this better than the late Jack Anderson, a columnist and investigative reporter whose talent for cultivating sources led to disclosures of all kinds that embarrassed and infuriated several administrations. Like many journalists, Anderson was a pack rat, and by the end of his career he had accumulated nearly 200 boxes of notes and files, now stored at George Washington University in Washington, D.C. Shortly after he died in December, the FBI came calling on Anderson's widow, on a research librarian, and on a journalism professor who is writing Anderson's biography. The agents claimed they were looking for documents that might relate to the ongoing domestic spying prosecution against two former lobbyists for the American Israel Public Affairs Committee (AIPAC).

Never mind that the defendants are accused of "communication of national defense information to persons not entitled to receive it" between 1999 and 2004, and that Anderson had been ill and stopped reporting nearly 20 years before his death. The FBI figured even if his files didn't have anything relevant to the AIPAC case, they were probably stuffed with other classified documents. And they wanted those back.

Journalists were outraged at the thought of the FBI rummaging through a dead colleague's papers. But equally disturbing is the FBI's contention that it has the right to confiscate any classified documents that are in the hands of someone "not entitled to receive" them. Surely once something is in the public domain, it stays that way.

Not necessarily. In February, the National Security Archive a nonprofit research institute also based at GWU reported that since 1999, the CIA and other agencies had secretly reclassified more than 55,000 pages of records that had been available to the public at the National Archives. The agencies claimed that scores of documents were mistakenly declassified during the Clinton administration, and that they had to be hauled back in.

Historians and the National Security Archive contended that many of the documents didn't deserve to be classified initially or had already been published elsewhere. By early March, the archivist of the United States, Allen Weinstein, declared a moratorium on any further reclassification of public documents. Just a few days before McCarthy was fired, Weinstein repudiated secret agreements with the CIA and the Air Force signed in 2001 and 2002 that allowed the agencies to remove the records and prohibited librarians from telling researchers why the documents were unavailable.

Librarians traditionally bristle at gag orders, and their protests over similar secrecy provisions in the Patriot Act led to revisions in the law. Usually, the public can count on librarians and archivists to fight to keep records open. But not always. The Marshall Library at Virginia Military Institute housed the papers of William Friedman, an NSA cryptanalyst. After his death in 1969, NSA employees reviewed them and separated out classified materials and "sensitive" correspondence. The collection was opened to the public in 1978. But for about four years, apparently by mistake, some "sensitive" documents, and others the NSA insisted should have been classified, were inadvertently made available on the open shelves. After they were removed in 1983, researchers, joined by the American Library Association, wrote to the NSA, arguing that the agency had no power to direct a private entity to deny access to nonclassified materials, and that once information had been made available to the public, even by mistake, it couldn't be reclassified.

They lost on both counts. In American Library Association vs. Odom, the U.S. Court of Appeals for the D.C. Circuit, in an opinion by then-Judge Ruth Bader Ginsburg (now a U.S. Supreme Court justice), upheld a district judge's ruling that the First Amendment would not block reclassification of documents "where their disclosure might endanger national security." And because the Marshall Library had voluntarily pledged to withhold those documents and didn't want to hurt its relationship with the intelligence community by defying the secrecy order, it was not a "willing communicator" chafing under the prior restraint. Therefore, the researchers didn't have the legal right to challenge it, either.

So let this be a lesson to all investigative journalists: Be careful where you bequeath your papers. They just might end up in the hands of the federal government.

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