The Incredibly Shrinking Freedom of Information Act
Indeed, the Pentagon’s poor record of late in securing the cooperation of others had introduced a note of pessimism into press briefings and discussions. After agreeing to accept 10 U.S. ballistic missile interceptors on Poland’s soil, the Polish prime minister to buckled under heavy Russian pressure and, on July 5th, announced there was no deal – at least. Just over a week later, July 13th, the media carried articles quoting negotiators to the effect that the U.S.-Iraq “long-term security pact” would not be completed during Bush’s term in office (which ends January 20, 2009).
Compared to Iraq, the talks between the Czech Republic and the Bush administration on siting a missile defense tracking radar on Czech soil went smoothly. For one thing, the U.S. acknowledged in the agreement’s preliminary paragraphs that the Czech parliament had to approve the plan – a quite different stance from Iraq where parliament is involved in the discussions to make sure Prime Minister Nouri al-Maliki doesn’t sell the farm.
But something else of equal if not greater concern than missile defense in Europe has been included in this agreement. Ever since it became law in 1966, the Freedom of Information Act has been a burr under the saddle of proponents of maximum secrecy in government. This battle was rejoined almost with glee at the beginning of George W. Bush’s first term in office when Vice-President Dick Cheney held closed sessions with U.S. oil executives, ostensibly to develop a new energy policy for the country.
Having won head-on in the courts, it may be that the administration is trying to undermine the foundation of the law. the right of the people to know what government does in its name. The vehicle for this latest assault on open government is not energy but missile defense – the “Agreement Between the Czech Republic and the United States of America On Establishing a United States Ballistic Missile Defense Radar Site in the Czech Republic.” Here is the possible sequence:
(1) Article I paragraph 7 of the agreement defines “controlled unclassified information” as unclassified information to which access or distribution have been applied in accordance with applicable national laws. Such information could include information that has been declassified but remains controlled.)
(2) Article X paragraph 11 calls for “timely exchange of relevant information” between the U.S. and the Czech Republic.
Article XII, titled “Controlled Unclassified Information” provides that:
(a) Such information shall be used only for the purposes authorized by the originating party;
(b) Access to such information shall be limited to personnel whose access is necessary for authorized use.
(c) The recipient shall not release controlled unclassified information to any third party without prior written consent of the originating party.
(d) Each party shall take all lawful steps, which may include national classification, to keep controlled unclassified information free from further disclosure (including requests under any applicable domestic legislation), except as provided for in paragraph 1(b) above, unless the originating Party agrees to such disclosure….”
There’s a bit more, but this is that “magic point” again where unclassified material – unclassified, that is, before being collected and after being collected (otherwise it would not be controlled unclassified information) – suddenly becomes classified and therefore not accessible by the public.
This is an open invitation to take all unclassified material that has been collected from any source that could even remotely be tied to missile defense anywhere in the world or to the Czech government anywhere in the world on any subject, turn it over to Prague for classification as per their domestic security laws, at which time it becomes “free from further disclosure” to any one not properly cleared – you and me.
Guess what that does to the Freedom of Information Act.