We live in an age of fears about national security and invasion of personal privacy. Those jitters may not seem to have much in common, but together they have dealt a blow to something else Americans hold dear: the right to know what our government is doing.
Getting access to records is one of the main ways the public can hold its leaders accountable, and freedom of information laws and traditions in this country have made the United States a model of openness for the world.
Yet in recent years, government officials and judges have repeatedly cited both the protection of individual privacy and the nation’s need to fight its enemies to allow the government to operate in secrecy. It shows up in court hearings that are now closed to the public, in once-open records that the government now withholds, in the thick wash of black ink that obscures many of the records they do hand over.
David Schulz, one of the nation’s top First Amendment lawyers, drew these connections at the University of Minnesota journalism school’s annual Silha Lecture last week. His talk was alarming, but it also made clear that there’s a vibrant movement to force the government to live up to its promises of transparency.
The secrecy impulse shows up when death-penalty states pass laws to hide the origins of their lethal injection chemicals — the ones used in bungled executions. It shows up when a police department won’t release details about a mobile X-ray van that can see through cars.
You can find the same secrecy reflex at all levels of government. This month, the Star Tribune asked the state of Minnesota to render a legal opinion on the Department of Public Safety’s refusal to hand over contracts it has signed for “cellular exploitation” devices, which can track people through their cellphones.
The department argues that it can legally withhold the contracts because releasing them would expose trade secrets and investigative techniques.
This should be the best of times for open government: The concept is enshrined in the Constitution and protected by federal and state laws, and the current occupant of the White House promised to have the most transparent administration in history.
Yet some court rulings have placed privacy over public access — add to that the influence of the post-9/11 security mind-set, and you can conclude “the state of the law is kind of a mess,” Schulz said.
Schulz, who’s based in New York, has represented the Associated Press, the New York Times, the Guardian and other news organizations in some of the most high-profile scuffles over access to information.
These are sometimes unpopular cases: There’s probably not much sympathy among Americans for the plight of the terrorist suspects and other detainees at Guantanamo Bay. But Schulz and others have fought to open their military tribunals to news coverage and to get access to records of Guantanamo and those detained there.
The government has made some absurd arguments along the way, such as asserting that it must shield detainees’ names to protect their privacy.
Schulz represented news outlets that persuaded a federal judge on Oct. 3 to order the release of 28 videotapes that supposedly show the force-feeding of a Guantanamo prisoner on a hunger strike. The Obama administration had warned that the images could inflame anti-American sentiment, but the judge found the arguments vague or “just plain implausible.”
Sometimes government does need to operate covertly. Sometimes the right to privacy outweighs the public’s right to know.
Yet, as Schulz said, the erosion of open government has reached the point of “denying the public basic information that it needs to function” and now poses a threat to our liberty.
Contact James Eli Shiffer at email@example.com or 612-673-4116. Read his blog at startribune.com/fulldisclosure.