March 10, 2005
If you’ve ever read much Franz Kafka, you’re probably now dressed in black, clinically depressed and of no help to me with this story.
But if you’ve been exposed to even a little Kafka, perhaps by your high school or college English teacher, you might have come across a dark little short story called "The Trial."
The plot line is simple. A man is arrested at his home and put in jail. No one ever tells him what crime he has committed, but he is ultimately brought to court and found guilty.
Which is eerily similar to the "No Fly" list established by the U.S. government after the Sept. 11, 2001, terrorist attacks.
People show up at the airport," says Harry Hammitt, "and are told they can’t fly because they’re on the . . .No Fly’ list. And when they ask, . . .What is the legal justification for this?’ they’re told, . . .We can’t tell you.’"
That’s the sort of thing that drives Hammitt crazy - not so much that the government has a . . .No Fly’ list (given the events of the past few years, the idea is not completely outlandish), but that it’s shrouded in secrecy. And as the Lynchburg-based editor of "Access Reports," one of the leading Web sites on the subject of freedom of information, Hammitt regards secrets the way exterminators do cockroaches.
Last week, he was asked to give expert testimony to a Congressional subcommittee on "National Security, Emerging Threats and International Relations."
Remember the days immediately following what is now referred to only as "9/11"? People were scared to death - and who could blame them? The world, at that moment, seemed to be going mad.
Thus, for a while, paranoia became normal. It also fit into a long-evolving pattern of government secrecy - J. William Leonard of the National Archives testified before last week’s subcommittee that 60 percent of what is currently classified really doesn’t need to be.
They’ve even come up with a new category," said Hammitt. "It’s called . . .sensitive but non-classified.’"
Which means that even though the shielded information didn’t go through the proper bureaucratic channels to be shielded, they still aren’t going to share it unless you go to court and make them.
Connecticut Rep. Christopher Shays, the subcommittee chairman, noted in his opening statement that "legally ambiguous markings like . . .sensitive but unclassified’ only create new bureaucratic barriers to information sharing. Those pseudo-classifications now have persistent and pernicious practical effects on the flow of threat information."
What bothered Shays, in other words, was that government agencies were not only stonewalling the media and the public, but other government agencies.
Hammitt’s testimony was rather technical, an attempt to show that many of the government exemptions claimed under the Freedom of Information Act ("Foya," to those who use it) are, in fact, unlawful.
Such shenanigans create a temptation, he fears, to seal politically sensitive (or maybe just embarrassing) information into the vault along with threats to national security. And to invite one agency protecting its turf to use secrecy to foil another, even when cooperation is in the best interest.
You can’t classify something that has previously been public, for instance," Hammitt said.
His favorite example? A decision to hide the location of a reservoir in New York, just in case terrorists might be lurking in the vicinity.
Bridges or roads or manufacturing facilities that are vulnerable will not be fixed," he said, "because their vulnerabilities are hidden. They are much more likely to be fixed, and thus become less useful as an end goal to terrorists, because individuals and groups put pressure on government or business to fix them."
And how hard to find was the New York reservoir?
It was located on Reservoir Street," Hammitt said.