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New twist on government control of data: use of subpoenas

Justice officials have asked a court to make the ACLU return a classified document. Is too much kept secret?

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When Anthony Romero finally read the document marked "secret" that the Justice Department was subpoenaing "any and all copies of," he scratched his head.

"It simply had nothing to do with national security. If anything, it might be mildly embarrassing to the government," he says.

And so Mr. Romero, executive director of the American Civil Liberties Union, decided to fight. That kicked off the latest battle in one key arena of the Bush administration's war on terror – the information front.

Both sides agree that nothing less than the nature of American society is at stake, although each side sees different threats. The administration says the danger comes from technically savvy terrorists who are out to exploit the nation's open society in order to undermine it. Critics contend that the real peril comes from the administration itself, which, they charge, is abusing the classification system to shield its activities from public scrutiny, thus undermining the workings of democracy.

This struggle between the needs to protect national security and civil liberties goes back to the Alien and Sedition Acts of 1798, which were passed to silence critics of the war with France. Such practices became more formalized in 1940, when the Roosevelt administration issued the first executive order creating a classification system. But since 9/11, the struggle has intensified.

"Democracy cannot give you a perfectly clear line between the balance of transparency and secrecy," says James Carafano, a senior fellow at the Heritage Foundation, a conservative think tank in Washington. "That will always create natural tensions, particularly at a time when we see we do have a lot of enemies."

Revised approach after 9/11

Since 9/11, the Bush administration has sought to keep secret any and all information that it believes could potentially be used by terrorists. In March 2003, it issued a broad executive order that extended the authority to classify information from agencies like the Department of Agriculture, Health and Human Services, and the Environmental Protection Agency. It's also extended the time information could be kept secret, from 10 years to 25 years. Moreover, it began a campaign to reclassify millions of documents from earlier administrations that had previously been declassified.

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