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Mr. Bush, Tear Down That Curtain!

You might not know this piece of patriotic trivia, but FOIA has been in effect and lighting up our government for exactly 40 years.
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July 4th brings thoughts of fireworks, hot dogs, and cold beer, but as you see your ballparks and skylines light up tonight, take a minute to think about another July 4th tradition, the Freedom of Information Act. You might not know this piece of patriotic trivia, but FOIA has been in effect and lighting up our government for exactly 40 years today.

The Act can trace its origins to the time of Joe McCarthy. The relevant background is as follows: In March 1954, newsman Edward R. Murrow set into motion the downfall of the demagogue senator, using McCarthy's own words to show America his dark side. The centerpiece of the historic broadcast was actually a clip of McCarthy browbeating a witness over his one-time association with the "Communist-influenced" ACLU.

Before giving his signature signoff, Murrow warned that McCarthyism was a symptom of a disease, not the disease itself. National security concerns about Soviet espionage and global expansion were building into wildfires of public hysteria. Farmers in the Midwest, socialites in New York -- all were terrified of the Red Menace, a terror made even more acute by the advent of nuclear weapons.

McCarthy was able to exploit the government secrecy that was at its height during his heyday to do his smearing. He could make wild accusations without official repudiation. Damaged by the Murrow broadcast, McCarthy then picked a fight with the Army and was later censured by the Senate. A wreck of a man, he died three years later.

McCarthy's crusade highlighted another creeping problem in post-war America: the dilemma of maintaining government accountability in the face of national security threats -- whether real or exaggerated.

The government was beyond tight-lipped about everything Soviet and everything nuclear. In 1950, G-men literally burned all copies of a Scientific American magazine with articles on H-bomb technology. And the ACLU recognized the danger in the lack of a formal mechanism to maintain open government, especially during times of public hysteria like the McCarthy years.

In 1954, we commissioned a report on the suppression of news and government secrecy, citing especially the Federal Trade Commission, and the Securities and Exchange Commission. Our report called for "greater legal sanction to the public's right of information" from the government.

We ultimately got our wish in the Freedom of Information Act, signed by a reluctant President Johnson on Independence Day 1966, and first implemented 40 years ago today. FOIA is essentially democracy's x-ray. It's the only way that the American people can look into the black-box of government policy making and make sure the government is doing what it says it's doing or should be doing.

FOIA's history is telling. It's the daughter of the Cold War, and McCarthyism's wiser, honorable cousin. It was vastly unpopular in the federal agencies and the White House -- the branch of government with the most to gain from keeping secrets -- and yet unanimously supported in Congress. It shows how a functioning democracy can institute appropriate checks on the government, even during a time of national security crisis.

FOIA's recent history is also instructive. In 1974, after Watergate exposed widespread civil liberties abuses by the intelligence community, Congress amended FOIA, over a presidential veto, to allow the public to request intelligence documents. After that, an additional load of illegal dirty laundry tumbled out of the CIA, the Pentagon and the FBI.

More recently, even with the Bush administration's new restrictions on FOIA requests, ACLU attorneys have aggressively and successfully used FOIA to produce documents on torture at the military prison in Guantánamo Bay. Just last week, we filed our latest FOIA lawsuit demanding information on the abuse of National Security Letters.

Despite these successes, on this Independence Day, FOIA's birthday, we must also be concerned about the health of our open government laws.

Today, the bureaucratic backlog for FOIA requests is crushing. Excessive secrecy connected to 9/11 and the Bush administration's ideological commitment to executive supremacy has rendered the Departments of Defense, Justice and the White House virtual no-FOIA zones.

Just as bad, some requests take decades to process, and agencies often force those requesting information into expensive court battles, only to have the documents released at the 11th hour to avoid losing a case.

Thankfully, a strongly bipartisan group of lawmakers, including notable conservative cosponsors Senators John Cornyn (R-TX) and Johnny Isakson (R-GA), introduced the Open Government Act. Among other things, the bill would require the government to create a tracking system for FOIA requests and would provide greater specificity in how the agencies may redact or exempt documents from disclosure.

Unfortunately, a minority of one has placed a hold on the bill, indefinitely blocking it from further progress in the Senate. Senator Jon Kyl, the Arizona Republican with a voting record quite similar to Senator Cornyn, won't let the bill go to a vote.

Reportedly, he has "concerns" with its effect on the Justice Department. I would respectfully suggest that Senator Kyl take a look at the scandal-ridden Gonzales Justice Department.

And as I write this, the clock is also counting down on Senate subpoenas meant to finally shed some light on the executive branch's involvement in that same illegal NSA program.

You can learn more about FOIA, civil liberties and ACLU history in In Defense of American Liberties, the definitive history of the ACLU, written by Samuel Walker.

But the fundamental argument is simple. In the words of President Johnson, "democracy works best when the people have all the information that the security of the nation will permit." In times of crisis, the government tends to use "national security" as an all-purpose excuse to prevent the release of embarrassing or politically damaging information.

This is not how it should be. Open government is free government. On this Independence Day, Mr. Bush, tear down that curtain of secrecy.

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