Published November 29, 2001
NEW YORK – The new, more wary America that emerged from the ashes of Sept. 11 has made sacrifices in its air travel, its spending and the national mood.
But should the idea of open government also be sacrificed?
That's what state legislatures across the country are saying. To take measures to prevent more terrorist attacks from happening on U.S. soil, they want to give themselves the power to do some of their governmental work without the public knowing about it.
In Tallahassee, Fla., the state Senate gave its president broad authority to close any security- or terrorism-related legislative meeting "at his sole discretion." It also changed a second rule, sealing "all records, research, information, remarks and staff" work for 30 days, after which the Senate president can extend the seal.
On Tuesday, the Senate Criminal Justice Committee approved a bill that would keep secret much information on the state's anti-bioterror drug stockpiles, hospital emergency-response plans and any records the state police deem relevant to terrorism investigations.
The problem? Critics worried that, among other things, the public wouldn't see crucial knowledge as basic as the state's available stockpiles of antidote serum.
In Des Moines, Iowa, the state director of the Department of Homeland Security said she wants the legislature to help her keep confidential the measures she's taking to safeguard government and other key sites that could be terrorist targets. She has asked the state attorney general to see how legislators can overhaul open-records laws to do so.
In Concord, N.H., legislators are considering the Security Issues Bill, which would allow government agencies to meet in secret on public-safety matters and keep security records from the public's eyes. And similar changes to the ones in Florida, Iowa and New Hampshire are being considered in Wisconsin, New York and Kentucky.
Florida state Rep. Dan Gelber, D-Miami Beach, who supported some of the House versions of the anti-terror bills, said legislators in his state are taking care not to tread over the public's right to know about the affairs of the government. But in today's world, it's inevitable government is going to be more secretive, he said.
"We have to balance the public's desire to know whether we are prepared with releasing information that might endanger security," he said in a telephone interview. "[But] there is no such thing as total transparency in government anywhere. … We're not going to have total transparency, and the American public wouldn't want total transparency because they would not want every aspect of our nation's vulnerability known to anyone who wants it."
Although they acknowledged things have changed after the terrorist attacks that leveled the World Trade Center and ruined part of the Pentagon, civil-liberties activists and constitutional law experts were dismayed.
"It's easy to understand why the FBI, the INS, the CIA, and other federal agencies charged with matters directly or indirectly affecting homeland security might need more than the usual degree of secrecy to preserve the confidentiality of sources and methods and to avoid compromising our ability to capture terrorists and prevent future acts of terrorism," Harvard constitutional law professor Laurence H. Tribe wrote in an e-mail. "And the intelligence committees of the House and Senate may well need to receive and review such sensitive information in closed session.
"But the idea — now apparently taking hold in the states that typically begin and sometimes end our presidential contests [New Hampshire, Iowa and Florida] — that state legislatures should be able to sweep the crucial democratic values of open public hearings and open records under the rug of national anti-terrorism security seems preposterous," Al Gore's former Supreme Court attorney continued.
Tribe's concerns were seconded by Samuel Issacharoff, a professor of procedural jurisprudence at Columbia Law School and author of The Law of Democracy: Legal Structure of the Political Process. He feared the new authority that legislatures are giving themselves could be used for purposes only tangentially related to the current war on terror.
"Initially after Sept. 11 there was this tremendous drawing together of patriotic concern … but it doesn't take long for political self-interest to start creeping back into the equation," he said in a telephone interview. "It seems like every pet cause was suddenly dressed up as part of the fight against terrorism ... I can't help but suspect that a large part of the [recent legislative changes] has to do with undoing the burdens of state governments."
Even so, Issacharoff said, there's nothing unconstitutional with what any of the states are doing. They're merely reversing the 1970s trend toward agreeing to so-called "sunshine rules" to try to instill more trust in the government. On the whole, he said, those wide-eyed reforms turned out to be a difficult way to get things done.
"There's not a constitutional requirement that there be open-meeting laws at the state level nor at the federal level," he said. "So long as the basic functions of government continue … and there's judicial review and so forth, the Constitution is satisfied."