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Home > Publications > Quill > A Decade Later: 9/11 and Freedom of Information


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Wednesday, October 5, 2011
A Decade Later: 9/11 and Freedom of Information

September 11th changed the course of history. That includes the way freedom of information is used by journalists, citizens and governments.

By Morgan Watkins

Days: 3,652.

Weeks: 520.

Months: 120.

Years: 10.

Ten years ago, the U.S. was rocked by the biggest terrorist attack in its history. The nation lost 2,977 people that day.

After 10 years, the legacy of that terrible day persists. The times may have changed, but 9/11 left a mark that may have been tempered with time but can never be erased. One area that bears a significant imprint from 9/11 is freedom of information.

“There’s no question that there was a sharp uptick in government secrecy post-9/11, and not only in the domain of national security classification,” said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.

In the weeks following 9/11, people were trying to fill in a succession of question marks with answers that just weren’t there.

“In the absence of clear answers, policy choices were made anyway,” Aftergood said. “Many of those choices involved restricting access to information.”

After a decade, those restrictions have loosened — but not nearly to the level of openness Americans previously possessed.

Government information policy has stabilized to a point at which officials usually err on the side of nondisclosure, he said.

“The public has become accustomed to an environment in which inquiries are denied, in which their questions are not answered,” said Ted Gup, journalism department chairman at Emerson College.

Material that was previously available during the 1990s remains offline, and government agency intranets have increased at the expense of document publication on the Internet, Aftergood said.

But there’s been a reaction to the post-9/11 reaction. President Barack Obama is attempting to make more information public through open government projects like Data.gov, which provides access to datasets, he said. Some of Obama’s transparency efforts may be curtailed by budget reductions, but long-term trends will probably favor increased online disclosures.

The Obama administration has also emphasized the importance of the Freedom of Information Act. Miriam Nisbet, director of the Office of Government Information Services at the National Archives and Records Administration, has helmed the new office’s efforts to mediate disputes between government agencies and citizens regarding FOIA requests.

OGIS was established by 2007 amendments to FOIA, but it wasn’t fully operational until September 2009. Nisbet, who previously worked for the National Archives on access to information issues in the 1990s, has seen changes in FOIA’s implementation during her time at OGIS compared to the way it was used before 9/11.

One of the biggest shifts has been in the Obama administration’s efforts to change agencies’ attitudes toward FOIA.

“There is a recognition at the senior leadership level that this is important and that backlogs need to be reduced,” Nisbet said.

She has seen many FOIA officials working to find out what information citizens want and to determine the best ways of proactively releasing that information.

Creating an atmosphere that promotes an effective and efficient FOIA implementation isn’t a goal that is achieved overnight, though.

“You’re talking a culture change, and that’s not something that happens quickly, and it’s not something that happens immediately when an order is given that way,” she said.

Despite improvements in making information more accessible, one bastion of secrecy that poses a hurdle for freedom of information is “pseudosecrecy,” which referes to the use of safeguarding labels to protect unclassified data from disclosure.

Government use of safegaurding labels exploded after the Sept. 11 attacks and continues to threaten FOI efforts in the U.S.

“That’s been a big part of the problem, because prior to 9/11 there was not a heck of a lot of safeguarding label use,” said Daniel Metcalfe, executive director of the Collaboration on Government Secrecy at American University’s Washington College of Law. “But after 9/11 … there were some folks in government who realized that we had this new type of sensitivity — homeland security sensitivity.”

Metcalfe, who served as the founding director of the Justice Department’s Office of Information and Privacy from 1981 to early 2007, was a signatory on a March 2002 executive branch memorandum that included guidance on safeguarding data. In the memo, he delineated a category using the heading “Sensitive but unclassified.” SBU later caught fire among agencies, which broadened the use of such safeguards.

In summer 2006, efforts to narrow the use of safeguarding labels fell back as the federal government created a label to replace SBU. The new concept was called “Controlled unclassified information.” CUI broadened the scope of document safeguarding well beyond its original intent.

The problem with CUI is that it doesn’t have any specific definition, Metcalfe said. Even in an executive order on CUI, Obama failed to define it. This left agencies the task of determining the label’s reasonable uses.

In addition to pseudosecrecy, overclassification has also developed over the years as increasing amounts of data have been restricted from public view using national secuirty classification. Obama issued an executive order in December 2009 that called for review of the U.S. classification system in an attempt to reduce the amount of classified information.

The government recognizes that, although it is important to protect sensitive data, too much information is classified, Nisbet said. The National Declassification Center within NARA isn’t even two years old yet, but it has taken on the task of declassifying and releasing as much of NARA’s approximately 400 million-page records backlog as it can.

Agencies became increasingly wary of the potential implications of disclosure after 9/11, and this caution endured through the Bush administation and remains, to a lesser degree, under Obama, said Patrice McDermott, director of OpenTheGovernment.org.

“There was still the same pressure on agencies to withhold information, to not put information up and to frame every thought about the possible risk of information rather than the benefits to the public,” McDermott said. “It really didn’t significantly change until the change in administration.”

Intelligence agencies have the greatest interest in withholding information because they deal with security issues, said Kel McClanahan, executive director of National Security Counselors. It is important for these departments to protect national security, but they can sometimes go overboard.

“Some agencies have been blinded by the fact that they can withhold information, and they lose sight of whether or not they should,” he said.

Although government officials still consider the potential implications of releasing data, there isn’t the automatic assumption from the early post-9/11 era that somebody could misuse that information.

The use of safeguarding labels and other tactics to withhold information isn’t the only aspect of government that has expanded over the past decade. Intelligence and national security departments have increased in size and power as well.

“These things aren’t light switches. You can’t turn them on and off. Once they get rolling, it can be very difficult to reverse course,” said Alasdair Roberts, author of “Blacked Out: Government Secrecy in the Information Age” and professor of law at Suffolk University. “The bureaucratic apparatus that grew up after 9/11 is going to be with us for many, many years.”

Legislation like the Patriot Act, enacted in October 2001, strengthened these agencies. The Patriot Act gave agencies more leeway, allowing law enforcement departments more freedom in searching phone, medical and other records and loosening constraints on foreign intelligence gathering.

The Patriot Act has proved to be an enduring piece of legislation. Obama approved a four-year extension for specific Patriot Act provisions in May, including the use of roving wiretaps.

As intelligence agencies expanded after 9/11, the scope of their information-sharing networks with national and international intelligence, defense and law enforcement departments also broadened. To fight terrorist networks, the government decided it needed to build stronger networks of its own, Roberts said. These programs facilitate data sharing among agencies but are based on confidentiality agreements that shared information would not be made publicly available.

The anti-disclosure attitude that dominated the months immediately following 9/11 hasn’t completely disappeared from national security and law enforcement agencies like the CIA and FBI. Although their FOI efforts have improved in recent years, there still seems to be stronger resistance to open government projects in those departments, McDermott said.

TIPPING THE SCALES

Although the scales have tipped away from the staunch pro-secrecy sentiments of the immediate post-9/11 period, the question of whether they will even out or tip more decidedly in transparency’s favor remains unanswered.

The pursuit of a new equilibrium, albeit an uneasy one, between transparency and secrecy hasn’t been confined to the government. Controversial questions pitting the value of open government against the need for protection from terrorism have divided U.S. public opinion for years.

Immediately following 9/11, the American public was more willing to accept the government’s anti-disclosure attitude largely due to one key factor: fear.

While there had been previous brushes with terrorism in the U.S., none came close to the destruction witnessed in September 2001. America was thrown into a precarious position, with many citizens scared they might become victims of the next terrorist strike. A decade later, that fear persists.

According to a 2011 poll by Time magazine and the Aspen Ideas Festival, 6 percent of the citizens polled said they believe the nation has completely recovered from the Sept. 11 attacks. Eight in 10 respondents said they expect the U.S. to experience another major instance of terrorism in the next decade.

The culture of fear that arose after 9/11 has developed a mantra similar to America’s reaction to domestic communism during the Cold War, said Ohio State University political science professor John Mueller. But while communism could be eradicated, terrorism cannot.

“You can’t stop murder or shoplifting as long as a person or small group can do it. Communism could at least die, but terrorism can’t,” he said. “You can’t possibly bring it down to zero.”

Media coverage of terrorist efforts and other reminders of 9/11, such as the Transportation Security Administration’s airport screening process, keep the specter of terrorism on citizens’ minds, McDermott said.

Journalists aren’t immune to these fears. After the Sept. 11 attacks, many reporters didn’t ask the government tough questions, according to Gup. Whether guided by super-patriotism or wary of questioning the government during such a high-stakes period, journalists weren’t living up to their responsibilities as watchdogs.

A decade later, this habit of deferring to the government without scrutiny has dissipated. However, the media maelstrom that has developed over the past 10 years as news outlets have struggled to adapt to a changing industry has made it more difficult for journalists to perform their watchdog duties effectively.

NOT THE ONLY CAUSE

Although 9/11 has had an indelible effect on transparency issues, it isn’t the only event that has transformed FOI in the U.S. over the past decade.

Two developments that have greatly affected U.S. transparency efforts are technological improvements and the rise of WikiLeaks.

Technology has advanced far beyond its 2001-era capabilities. In the 1990s, government agencies were adjusting to the relatively new idea of publishing information online.

A decade after 9/11, people need only tap a few buttons on a keyboard to access heaps of data. Information disclosure is a more difficult task now than it was 10 years ago because there are more documents to sift through when determining what can be released.

Although managing so much information is difficult, technological advancements have also bolstered pro-transparency attitudes among the public. Now that the Internet has become a part of Americans’ daily lives, people expect more information to be available online.

“If you give them a good reason why the information can’t be shared, I think there’s an understanding there,” said Sean Moulton, director of federal information policy at OMB Watch. “At the same time, there’s a healthy questioning of government decisions.”

Americans won’t necessarily welcome disclosure for disclosure’s sake, according to Aftergood. When WikiLeaks published thousands of U.S. State Department cables in 2010, public opinion splintered over the question of whether such information should have been leaked.

“People do not seem to welcome indiscriminate disclosure,” Aftergood said. “They’re skeptical of the idea of the big scoop that seems to aggrandize the reporter more than it informs the public. On the other hand, people understand the dangers of government secrecy and what can happen when you do not have an inquisitive and effective press corps.”

Most people haven’t forgotten that the country went to war with Iraq over a misunderstanding about weapons of mass destruction that didn’t exist, he said. Citizens aren’t as quick to trust national policy without having adequate information on the issue.

The FOI landscape of 2011 is vastly different from that of 2001. But in many ways, it’s also very much the same.

Although data isn’t as tightly controlled as it was in the months following 9/11, it isn’t nearly as open as it was in the 1990s.

Open government organizations still face difficulties in their transparency efforts, but the Obama administration is more willing to discuss the issues than the Bush administration was, McDermott said.

FEAR HASN’T DISSIPATED

While no terrorist strikes have occurred in the U.S. that come close to rivaling the scope of 9/11, the fear of such a threat hasn’t dissipated. The May assassination of Osama bin Laden could help alleviate this fear over time, but its long-term effect remains uncertain.

As the nation observes the 10th anniversary of 9/11, the future of FOI in the U.S. is up for grabs. It will be up to government agencies and officials, as well as the American people at large, to decide what kind of legacy they want to build as they enter a new decade.

“I think we have a chance to decide what kind of government we want and what level of secrecy we’re willing to tolerate,” Aftergood said. “What makes the present moment exciting is that these questions are open for deliberation and discussion.”

The legacy of Sept. 11, 2001 will endure. The government will probably never be as free with information as it was before that day, and the shift toward secrecy among intelligence agencies and other government departments may never be entirely reversed.

But if 9/11 has any underlying lesson, it’s that nothing is permanent except for change. The U.S. changed after the 2001 attacks, and it changed again as technology advanced, and again after WikiLeaks launched.

Change can’t be avoided. It’s how Americans and their government react to it that will determine the course of the next decade.

Morgan Watkins was a summer 2011 Pulliam/Kilgore Freedom of Information intern for SPJ. She is a senior journalism major at the University of Florida.

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