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FOI Columns
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January-February, 2002
Press needs to challenge new concentration of power
By Charles Davis


Utter the word "unilateralism," and eyes roll. It's a big word, a policy wonk word, a word guaranteed to stultify readers. It's a word that freedom of information advocates had better become familiar with, quickly, because our federal government - and soon enough, our state and local governments - are embracing the newly rediscovered efficiencies of unilateral governance.

Unchecked by fear of another superpower and, at least for now, unchecked by our traditionally out spoken press and civil society, the Bush administration marches on. Debate about the purposes or methods of the war against terrorism has been cowed into virtual silence in the mainstream. The result, according to London's Guardian, is a sweeping "ruthlessness" manifesting itself in a startling concentration of power in the executive branch.

Let's take the past month alone, and count the moves that the administration has made without consulting anyone other than the inner circle:

A presidential order to allow trials by military tribunals for noncitizens accused of terrorism.

A suspension of the right of detainees to have private conversations with attorneys, if the attorney general deems they might pose a threat to the public.

A Justice Department plan to interview 5,000 young men who have entered the United States from specified nations since 2000. I don't have to tell you that no one will know who, when, where and for what reason these young men were "voluntarily " questioned, do I?

The Pentagon has told defense contractors not to talk publicly about military business and prohibited Defense Department acquisition officials from speaking with the press. "Even innocuous industrial information can reveal much ...to the trained intelligence collector," a Pentagon memo to contractors said.

The White House, angry over insignificant leaks to the media, first shrunk the pool of lawmakers privy to classified briefings, but backed down after Congress cried foul.

Government Web sites have been cleansed of sensitive military information on the where-abouts of aircraft carriers, Army chemical weapons stockpiles and nuclear powerplants. Government maps of the nation's gas and oil pipelines have been removed. So have data on the types of chemicals used in American communities - unilaterally, with no legal standards being applied, no debate, no principle at play other than unbridled power.

Finally, let's not forget the more than 1,400 people currently being detained by the Justice Department, many since Sept.11. The Justice Department already has denied access to any information about those individuals under FOIA. One media institution -The Nation - joined a request by more than 40 FOI, privacy and civil liberties groups for the information. No one - not even Congress - has been able to find out how many are still detained and what, if any, charges have been filed.

President Bush also signed an executive order eviscerating the Presidential Records Act, an overwhelmingly bipartisan post -Watergate creation opening up the records of past administrations.

Warped balance
What emerges from the laundry list is an unprecedented expansion of the exercise of executive branch authority with diminished opportunity for independent oversight, and little or no provision for accountability. The key seems to be speed, mixed with a bit of gravitas: new policies are unilaterally adopted almost daily, giving those of us in the position of debating them little or no chance to attract the scrutiny of Congress before the next outrage is perpetrated.

By doing so, and by labeling each unilateral move a blow for motherhood and apple pie and any critic of it a traitor, this presidency is warping the institutional checks and balances that took the nation decades to create. Because it seems easier, because it is more efficient, this administration is turning its cumulative back on the experience on which that balance was based.

Why is all of this important? Perhaps we should ask one of the 1,400 detainees who have been arrested and jailed as "material witnesses" in the Sept.11 investigation. It seems not one of these witnesses has yet provided any evidence material enough to secure an indictment against anyone for any involvement in the Sept.11 attacks.

Yet the government has done whatever it can to avoid releasing them, and to avoid releasing any details about them. Why? Because knowing their fate engenders sympathy, and sympathy might engender criticism.

Thanks to lawyers and human rights activists, (the fact that we speak of human rights activists working on domestic law enforcement issues alone is truly newsworthy, no?) we know the story of Ahmad Abou El -Kheir. El-Kheir is a 28-year-old Egyptian national arrested days after the WTC attack. He was suspected of knowing two of the hijackers. He was transported to New York and jailed as a material witness.

Almost one month later a federal judge ordered his release. He was then transferred to a Bronx court on a three-year old warrant involving a minor disorderly conduct conviction. Once that matter was resolved, he was transferred to the custody of the INS to face a charge that he had violated his visa on an earlier visit to the United States. When he agreed to depart the country, the INS continued to detain him for deportation, but refused to actually deport him. He remains in INS custody to this day.

No excuses
According to those closest to the situation, it appears the vast majority of the detainees have no access to representation by counsel, or access to the federal courts to seek habeas corpus release. The media has gathered information on a small number of detainees, and media coverage of their plight has helped some people to win their release.

Yet overall, media response beyond the initial "they won't tell us who these people are" stories has been virtually non-existent. Huge stories lie behind the administration's unilateral shift. Why aren't we telling them? The lack of access to information is no excuse.