Government Restrictions of Information in the Post 9/11 Era

Nicholas Batliner, Dustin Taylor

 

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Post 9/11 Secrecy
            Since the terrorist attacks of September 11th, 2001 (9/11), the government of the United States of America has increased secrecy and classification of information and has put restrictions on research at the citizen’s expense to enhance national security.  Much of the information the U.S. government has classified and reclassified since 9/11 is apparently unrelated to enhancing national security.  Therefore this action seems unnecessary.  The U.S. government has classified too much information and has placed too many restrictions on the flow of information in to the effort to increase national security due to the threat of terrorism.  However, this has done a lot of harm in the process.  The claim is that these actions have been put into place for the safety of the U.S. citizens.  However, these post-9/11 restrictions have done more harm than good.  The government needs to find a common ground between safety and the restriction of information in order to keep national security at its best while making certain information available to all.

History of Information Classification
There have been many changes made by the government in the five years since 9/11.  Some evident changes are the large increase in spending to secure classification of information and the decrease in the number of documents declassified each year.  In 1997, the US federal government spent $3.4 billion to secure the classification status of information.  In addition, in the year 1997 the government declassified 204 million pages of information.  In contrast, in 2005 the government spent $7.7 billion to secure classified information and only declassified 29.6 million pages of information.  (Broach and McCullagh)  This works out to be a 126% increase in dollars spent for the classification of information and a 589% decrease in the amount of pages declassified. 
Another significant change that was made regarding the classification of information post-9/11 was the Executive Order 13292 that was amended in March of 2003.  This order amended Executive Order 12958 which was enacted by the Clinton administration in 1995.  The Executive Order 12958 was passed to limit the powers of the government in the classification of information and encouraged the declassification of information.  In the six years directly following the introduction of Executive Order 12958 the number of records declassified each year increased ten times.  The executive order 13292 made it much easier to classify information and for longer periods of time.  Unlike the Executive order 12958, Executive Order 13292 now removed the time limit that a document will be initially be classified for.  Executive Order 13292 also removed the clause stating that information that is older than 25 years old that has historical value should be declassified.  It now stated this information could be declassified.  The Executive Order 13292 made huge efforts to make it easier to classify information and for longer periods of time along with not declassifying information that no longer needs to be declassified. (Bushsecrecy.org).
The Information Security Oversight Office (ISOO) is in charge of overseeing the security classification programs for both the government and the private sector, and it reports to the president annually.  The ISOO became part of the National Archives and Records Administration on November 17, 1995.  The goal of the ISOO is to provide for an informed American public by ensuring that the minimum information necessary to the interest of national security is classified and that information is declassified as soon as it no longer requires protection (http://www.archives.gov/isoo/public/.)

Post 9/11 Policy Issues
The government has been classifying large amounts of information since 9/11 as stated above.  Is it possible they have been over-classifying information?  The Bush Administration has given new agencies the authority to classify information that had not previously had the authority to do so.  The government has also classified much contact information for over 200 government positions.   A new law was passed to make new patents secret through a “secrecy order” under federal law. (Secrecy Report)  This limits other inventors and the public access to what is supposed to be public information. 
The government has also put up many restrictions on individuals, publications, technology, and materials necessary for basic scientific research.  They have increased monitoring of research, excluded foreign scholars from participating on research projects, and restricted them from entry or re-entry into the U.S. for study.  There are many restrictions put upon foreign scholars and researchers which include the Student and Exchange Visitor Information System (SEVIS), Visa Condor Program, Technology Alert List, Visa Mantis, National Security Entry-Exit Registration System (NSEERS), and the USA Patriot Act.  The combined effect of these new policies makes it much more difficult for foreign scholars to obtain the proper visas and to gain prompt entry or re-entry into the U.S.  The purpose of these restrictions is to limit the access foreigners have to sensitive or classified material.  The Office of Foreign Assets Control (OFAC) in 2003 made it illegal for American publishers to edit works from authors of nations with which the government has trade embargos.  In 2004, the OFAC pulled back from their initial ruling and granted all U.S. persons a general license to engage in transactions necessary in the marketing as well as publishing of written materials.  The government also put the Centers for Disease Control in charge of registering scientists to transfer materials that are “select agents” and monitor the facilities involved.  Many of these products exist in nature, have everyday uses, and are used frequently in research projects. (Science Under Siege)
In 2002 the U.S. Congress passed the Public Health Security and Bioterrorism Preparedness and Response Act.  The purpose of this act was “To improve the ability of the United States to prevent, prepare for, and respond to bioterrorism and other public health emergencies”. (U.S. Congress, To Improve the Ability of the United States to Prevent, Prepare for, and Respond to Bioterrorism and Other Public Health Emergencies)
The Public Health Security and Bioterrorism Preparedness and Response Act defined over 40 “select agents” that are considered to pose a threat to human health.  These select agents include bacteria, viruses, and fungi.  (U.S. Congress, To Improve the Ability of the United States to Prevent, Prepare for, and Respond to Bioterrorism and Other Public Health Emergencies)
Persons that will be working in a facility that contains any of these select agents or those who will even enter these facilities must pass background checks given by the U.S. Department of Justice.  Individuals originating from a country on the Department of Justice’s list of countries of interest will not pass the background check.  (http://rac.berkeley.edu/compliancebook/post911.html)

Implications of Post 9/11 Policies
Secrecy has many implications against what our constitution stands for.  Our government is based on openness to the public, including openness of information.  The government needs to be responsible and accountable for its actions.  It must be able to show the public how it is running our government and what they are doing.  For our country to have a balanced view on what challenges we face, there must be an open flow of knowledge and information between the government and the people.  How can the government be accountable if the public cannot find a way to contact the people in charge because their contact information has been classified?  It is hard to trust a government that is keeping secrets from its people, an action which goes against our democratic principles.  Openness prevents the abuse of power and poor decisions that could put people lives at risk, which in turn would not help national security.  It is hard to inform the public of potential dangers if information is being controlled and restricted.  In turn, the public needs information and openness to make informed decisions on who should represent them in the national government. (Openthegov.org)
Putting restrictions on foreign scholars has many negative implications for the country.  First, foreign scholars help our economy with over 580,000 students attending universities and colleges in the United States.  They contributed around $13 billion to the economy in 2002.  Second, the restrictions will hinder many of the top scholars and leaders in our country and in the world, which in turn will make the United States fall behind in many areas of study where our scholars are usually very strong.  Nearly half of the students enrolled in science and engineering programs are foreign scholars.  Approximately 40% of graduate students in engineering, math, and computer science in the United States are foreign scholars.  More than a third of U.S. Nobel laureates are of foreign origin.  Third, foreign scholars are a large part of the workforce, constituting nearly 50% of scientific and medical professionals at National Institutes of Health.  Close to 38% of engineers in the work force are also foreign (Science Under Siege).
The actions of the U.S. government regarding the increase in classification of information since 9/11 have potential negative implications.  One major implication is the financial burden it puts on the U.S. tax payers.  As mentioned above, the amount of money allocated only for classifying information has more than doubled between 1997 and 2005.  Other major implications include the secrecy and restrictions of information and research that has no bearing on the intent of these policies, to increase and maintain national security.

Recommendations    
How can the U.S. continue to be one of the world’s leaders in scientific research and engineering if they are restricting a large majority of the people involved in said research?  To remain a leader, the government must let foreign scholars into the country and allow them to do research with our native scholars, so our country and the world can continue to collaborate for the advancement of knowledge worldwide.Yet, the government should regulate the foreign scholars who are coming in and out the U.S. 
Obviously, every country should keep records of foreigners coming in and out of their country.  We must also ensure that enough academic positions remain available to U.S. scholars.  However, we should continue to encourage foreign scholars to come to the U.S. for research.  We must regulate their presence here, but encourage international research operations to increase the knowledge of everyone.
To make classification more consistent and still serve the purpose of protecting national security, the ISOO should make changes to Title 32 of the Code of Federal Regulations.  First, ISOO should make it mandatory for the original classifier to document what damage would be caused by the information to national security at the time it is deemed classified.  The justification for classification should not be delayed until it is challenged, as is the current situation.  Secondly, the ISOO should make a standardized set of classification guidelines for all agencies instead of encouraging originators of classification guides to communicate for uniformity.
Another very important component of current classification practices that must not be tolerated is how foreign students will not pass the government’s required background check to work on certain research projects just because they originate from specific countries.  This policy must certainly be removed.  This policy is no different from racist or sexist policies of the past that were not tolerated and have since been outlawed.  Why is this now tolerated in the name of national security when it has no apparent effect on national security?  It merely stereotypes people from certain countries because of a perceived threat of terrorism from those countries. 
The government document 32CFRparts 2001 and 2004 RIN 3095-AB18 which is a directive as a final rule and pursuant to Section 5.1(a) and (b) of Executive Order 12958, as amended, which relates to classified national security information.
(ISOO) According to this document, the agency and the person responsible for the original classifications must be able to identify or describe the damage to national security, but there is no current requirement for a written description at the time of classification.  They must only provide written explanation if the classification is challenged.  In the same document, classification guides are described for different government agencies.  There are no set guidelines between the agencies to make a standard for developing classification guidelines.  The document states that “when possible, originators of classification guides are encouraged to communicate within their agency and with other agencies that are developing guidelines for similar activities to ensure the consistency and uniformity of classification decisions.”(ISOO For the Public)

Bringing It All Together
            Since the terrorist attacks of September 11th occurred, the U.S. government has taken drastic actions to secure the classification and secrecy of information.  They have reclassified information that had previously been declassified, they have increased the number of documents classified, and they have also placed huge restrictions on research information in an attempt to prevent further terrorist attacks.  However, these actions are doing much more harm than good for the country.  In fact, a lot of the information subject to restriction has no ties to terrorism or national security, and the restrictions of such information would not prevent a large-scale terrorist attack on U.S. soil like that of 9/11.  Everyone agrees that certain information should remain classified, but the end result of the classification of information unrelated to national security is counterproductive because it ends up doing more harm than good.  The government should not be permitted to overstep its boundaries as such.

Works Cited
Analysis of Executive order 13292. BushSecrecy.org. 2006.
http://bushsecrecy.org/page.cfm?PagesID=31&ParentID=2&CategoryID=2.
Broache, Anne and Declan McCullagh.  “Post-9/11 privacy and secrecy: A Report Card.”            
Cnetnew.com.  8 September, 2006
http://news.com.com/Post911+privacy+and+secrecy+A+report+card/2100-          1028_3-6113518.html.
ISOO for the public. Archives.gov. http://www.archives.gov/isoo/public/.
Simoncelli, Tania and Jay Stanley.  “Science Under Siege: The Bush Administration’s Assault on Academic Freedom and Scientific Inquiry” The American Civil            Liberties Union (2005): 12-16 United States. Cong. To Improve the Ability of the United States to Prevent, Prepare for, and Respond  to Bioterrorism and Other Public Health Emergencies. 107 Cong., 2nd sess. H. R. 3448. 23 Jan. 2003. 10 Oct. 2006             http://grants.nih.gov/grants/policy/select_agent/HR3448_Public_Health.pdf.
United States. Information Security Oversight Office. National Archives and        Administration Records. Classified National Security Information Directive No.        1. 22 Sept. 2003. 16 Oct. 2006 http://www.archives.gov/isoo/policy-           documents/eo-12958-implementing-directive.html#2001.15.