E-Mail This Article to a Friend Under cover How the White House’s assault on the Freedom of Information Act enables torture, exposes media apathy, and hurts our ability to govern ourselves BY DAN KENNEDY

From the moment of its inception, what George W. Bush likes to call the war against terrorism — which, in White House–speak, most definitely includes the war in Iraq — has been carried out beneath a cloak of secrecy. Playing on the justifiable fears of the public, the Bush administration has rounded up foreign nationals in the United States and tortured terrorist suspects overseas, all while saying damn little about any of it to Congress, the courts, or the American people. The underlying message: what you don’t know can’t hurt you.

A significant part of that secret war has been a systematic attempt to undermine the Freedom of Information Act (FOIA), a 1966 law that allows journalists, researchers, and members of the public to obtain most government records produced by the executive branch. Despite White House stonewalling, we already have learned much about the extent to which detainees at Iraq’s Abu Ghraib prison and the Guantánamo Bay detention facility in Cuba were tortured. But there remains much that we don’t know. And the Bush administration is working hard to make sure that doesn’t change.

Consider two recent dispatches from the administration’s war on the public’s right to know.

• In mid January, the Justice Department unveiled its latest tactic to avoid complying with a more-than-year-old FOIA request that had been filed by the People for the American Way Foundation, in Washington. The organization was seeking data regarding secret proceedings against immigrants who had been rounded up after the 9/11 terrorist attacks. By all accounts, fulfilling the FOIA request should not have been a difficult task; an official in the Justice Department could have carried it out in a few days by phoning or e-mailing the 93 US attorneys’ offices around the country. But rather than cooperating, the Justice Department said it would cost People for the American Way nearly $400,000 — $372,799 plus expenses — and the fee would have to be paid in advance. At press time, the organization was still in court, fighting to have the fee lowered to a reasonable amount. "We’re quite suspicious that the fee, to a certain extent, is a bit of a subterfuge," says Elliot Mincberg, vice-president and general counsel of People for the American Way. "I think this is perhaps the most secretive administration since the Freedom of Information Act was passed in the 1960s."

• On February 2, US District Court judge Alvin Hellerstein, in New York, ordered the CIA to comply with a FOIA request that had been submitted in October 2003 by the American Civil Liberties Union and a coalition of other public-interest organizations. The ACLU, headquartered in New York, has been instrumental in rooting out thousands of documents related to the torture of detainees at US facilities overseas. Yet several agencies, most notably the CIA and the Defense Department, have resisted turning over documents. The CIA, in particular, had argued that the law exempts the agency from even having to search its so-called operational files in response to a FOIA request, a line of reasoning that Hellerstein decisively rejected. "It’s a very good ruling. It’s unfortunate that we needed it," says Jameel Jaffer, a staff attorney with the ACLU. "The CIA has released not a single document to us, and there have been credible allegations that the CIA has been involved in the torture of detainees."

Jaffer adds, "The Defense Department has also been extremely uncooperative." Oddly enough, one of the most outspoken supporters of FOIA at the time of its passage 39 years ago was a young Republican congressman named Donald Rumsfeld. In a congratulatory letter to President Lyndon Johnson, Rumsfeld wrote, "I whole heartedly agree that freedom of access to data about Government is so vital that only the national security, not the desire of public officials or private citizens, should determine when it must be withheld or restricted."

Of course, the future secretary of defense would soon learn that the "national security" exception would prove broad enough to withhold or restrict any information that might prove embarrassing or inconvenient. As for Bush’s covert war, we already know — thanks to previous documents the ACLU has been able to shake loose — that detainees have been sexually humiliated, tormented with dogs, and left to lie in their own urine and feces. It leaves you with a sickening feeling about what’s still being hidden away.

On December 23, the Washington Post published a strongly worded editorial on the torture practices revealed by the ACLU. Headlined WAR CRIMES, the editorial concluded, "For now the appalling truth is that there has been no remedy for the documented torture and killing of foreign prisoners by this American government." Then, on February 2, the New York Times editorialized against the outrageous $400,000 fee assessed to the People for the American Way Foundation. "This huge tab ... is well beyond established criteria and amounts to an insult to the law’s intent: letting citizens in on some of the murkier things the government may be up to."