Scary Ethics Theater: The Strange Case of the Freedom of DISinformation Act!

"It's Halloween! What better time for a good ETHICS SCARE in ERIC HOLDER'S JUSTICE DEPARTMENT!!! Come along, children! Don't be afraid!"

Welcome, visitors, to SCARY Ethics Theater on this All Hallow’s Eve!

Tonight we ask the scary question, “When is it ethical to be unethical?  For the chilling answer, we must enter the mysterious lair of Eric Holder’s Justice Department!!! Bwahahahahahahaha!!!

Come inside! Don’t be frightened!

The Holder-Obama Justice Department has proposed a regulation that would allow federal law enforcement agencies to tell people seeking information under the Freedom of Information Act that the government has no records on a certain subject, when it really does. That is, the regulation will officially sanction legal lying in response to FOIA requests by citizens.

The Justice Department’s argument is that this would allow agencies to avoid tipping off people that they are under criminal investigation. They have been doing this all along, actually: they were caught at it in the recent case of Islamic Shura Council v. FBI, when the government lied to the court about the information it had as part of its false compliance with the Freedom of Information Act, and the court was not pleased, writing…

“The Government contends that the FOIA permits it to provide the Court with the same misinformation it provided to Plaintiffs regarding the existence of other responsive information or else the Government would compromise national security. That argument is indefensible. Although the FOIA allows the Government to withhold certain categories of documents from requestors such as Plaintiffs pursuant to statutory exemptions, 5 U.S.C. § 552(b), or exclusions, 5 U.S.C. § 552(c), the FOIA does not permit the Government to withhold responsive information from the Court.”

Apparently the Department of Justice has been doing this sort of thing since the Eighties. Ronald Reagan’s  Attorney General, Edwin Meese, installed a policy that would allow Justice Department agencies to lie to any person who suspected that he was the subject of a federal investigation and resorted to the FOIA to confirm that suspicion. Since a refusal to turn over records would confirm the existence of an investigation, Meese decided that it was all right to deny that such records existed. (I never trusted Ed Meese.)

Here’s where it gets really funky, ethically. Since the Obama administration promised transparency, it wants to turn the informal policy of lying into an official law, known as section 16.6(f)(2). Oddly, some people have a problem with this. Sen. Charles Grassley (R-Iowa) says that he will  “take all necessary action” to block the rule. Grassley says that he is against the proposed rule for two reasons. He believes that it will lead to an increase in FOIA related litigation , since those requesting information will know that they can’t trust a “no records” response, and feels the law will undermine the public’s trust in government.

Really, Senator? You think passing a law that says that the government can lie in response to a law called the Freedom of Information Act, enacted to make certain that citizens can find out what their government  is up to, will lead to distrust, cynicism, and jokes about Washington D.C. being a trickster’s Hall of Mirrors? What would ever make you think such a thing?

“Proposed section 16.6(f)(2) stands in stark contrast to both the President’s and your prior statements about FOIA, transparency and open government,” Grassley said in a letter to Holder, citing the Attorney General’s support of President Barack Obama’s Open Government Initiative. Ah, yes…I remember those giddy days of hope and change, when President Obama issued a directive calling for “a presumption of disclosure” from government agencies dealing with FOIA requests. I had chills. It seems so long ago.

This didn’t stop a Justice Department official from praising the measure as ….a triumph of transparency! I’m not kidding. It is transparent, see, because the Justice Department has been lying in response to citizen requests under FOIA for two decades, but nobody knew about it. Now, thanks to transparency, we’ll know that the Justice Department lies.

So Obama’s pledge transparency didn’t mean “this administration won’t lie to you.” It meant that it will still lie, but be transparent about lying. Well, that’s a kind of transparency, isn’t it?

“War is peace. Freedom is slavery. Ignorance is strength.”

Lying is Transparency! I wonder how George Orwell missed that one. It fits so well!

I am not making this up. I wish I were.

16 Comments

Filed under Citizenship, Government & Politics, History, Law & Law Enforcement, Leadership, Literature, U.S. Society

16 responses to “Scary Ethics Theater: The Strange Case of the Freedom of DISinformation Act!

  1. We know the government thinks we’re a bunch of bafoons. Did I spell that correctly? :/ Sen.Grassley,here’s a news flash…we already don’t trust you guys. The government lies. This new regulation just makes it official. I think I’m going to have nightmares! Brrrrrr…

  2. tgt

    While I can understand the impulse to legalize what you’re already doing illegally, it’s still ridiculously unethical.

    What’s worse, is that there is a way to avoid this. If all negative responses to FOIA requests had the same boilerplate covering both “no” and “doesn’t exist,” then we wouldn’t be here. Something like: “It has been determined that the documents you requested are not subject to FOIA, either because the law doesn’t apply to this kind of information or the information itself does not exist.”

    If that gets challenged, the government would have to give the information to the court (if it exists), instead of lying to the court to cover up their lying to the people.

  3. Michael Boyd

    Yep, should have seen it coming. If not Obama-Holder, it would show up sooner or later.

  4. Dwayne N. Zechman

    This is a classical ethical dilemma between honesty and openness versus keeping confidential information in confidence that would cause harm if released.

    As a person who has a security clearance and does work for the government, I am routinely placed in the position where I have to routinely and ethically lie about some of the work I do to family and friends.

    When you get into the realm of “Sensitive but Unclassified”, as this sort of information under discussion is, the requirements are no different.

    FOIA is a GOOD THING, don’t get me wrong. But for the government (and law enforcement in this case) to be able to function, it must also be able to keep secrets. See the many articles here on WikiLeaks for the reasons why.

    Enacting into law similar provisions for SBU information as classified information (which is covered by a series of executive orders) just makes sense and should have been done years ago.

    –Dwayne

    • tgt

      As a person who has a security clearance and does work for the government, I am routinely placed in the position where I have to routinely and ethically lie about some of the work I do to family and friends.

      Really? In the organizations I’ve worked with that contain classified information, lying about who you work for and what you do is ILLEGAL for most employees and contractors. A simple “I can’t say anything about that” goes a long way. Of course, not all cleared individuals realize this. I can think of one guy in particular who told friends and family that he worked for a bank, when he was really in Security doing background checks—a job where you give your name, affiliation, and job title to strangers dozens of times a week.

      It’s possible that you’re in the required-to-lie group, but then you probably shouldn’t be talking about being in that group. It’s also possible that the work you do is under different authorities with different rules, but the opsec should still be the same.

      • Dwayne N. Zechman

        What I actually wrote (you even quoted it?!?) was “about some of the work I do“. I said nothing about lying about whom I work for or about what I do in general. (There’s enough counter-evidence on this site alone for that.) And no, I’m not a covert operative or undercover agent. (Although if I were, I’d still say I’m not….) ;-)

        What I’m talking about is discussions that go like this (over the course of multiple conversations):
        Have you ever worked on A? “No.”
        Have you ever worked on B? “No.”
        Have you ever worked on C? “I can’t say anything about that.”
        Have you ever worked on D? “No.”

        Clearly, by using that procedure, I’ve given something away. If someone is curious about “C”, I’ve just revealed that my employer has something to do with “C”, when they don’t want me to do that.

        So the correct answer is: “No.”, just like A/B/D.
        I could give examples that are more specific, but I won’t–I’m sure you can understand why.

        This is very different from creating work-of-fiction substitute answers, like in the case of the “I work for a Bank” guy. (Honestly, I don’t understand why he would say that, either.) But . . . there is a place for that as well. In those cases, everyone is briefed on what to say–so that everyone “keeps their stories straight.”

        –Dwayne

        • I’m a fan of appropriate secrecy, but the government needs to find a better way of protecting legitimate secrets from FOIA requests than making it acceptable to lie in response. If I know that the government can legally lie to avoid law protecting “freedom of information,” the I know I can’t trust the government regarding anything.

          • Dwayne N. Zechman

            In that regard, you’re 100% right . . . which brings us back to why it’s a true ethical dilemma. We can’t both keep secrets and be open and transparent about everything at the same time.

            Honestly, tgt is on the right track with making no distinction between “documents do not exist” and “we have legitimate reason not to release.” Even a redacted version still confirms the existence of the document.

            –Dwayne

        • tgt

          Your problem is that you answered “No” to A, B, and D. If anyone ever asks me a question like that, the generic “I can’t say anything about that” is the appropriate answer.

          Also, what people routinely ask you questions like that? If I was receiving questions like that from a friend, I’d tell them to stop, as I won’t answer. If they persisted, I’d be forced to report the incidents.

          • Dwayne N. Zechman

            The reason I answer “No” most of the time is that 99.9% of the things in my life are not classified. I can’t go around answering “can’t say” to every question someone might have about my work throughout my career just because of the handful of actually classified things that I do know.

            And no one routinely asks me questions like that. It was an illustration.
            “C” == “Classified”. Get it?

            –Dwayne

            • Dwayne N. Zechman

              I take that back: A recruiter or manager who is interviewing me to potentially hire me to do work for them would indeed have good reason to go over my resume, line-by-line, and ask me about each of the things on it.

              By the time we’re done, I will have made it sound as though nothing I ever did was classified.

              –Dwayne

              P.S. Also, add a smiley-face after “Get it?”

              • tgt

                The reason I answer “No” most of the time is that 99.9% of the things in my life are not classified.

                It’s not classified that I don’t work on A. It’s also not classified that I do work on B (that involves classified information). It’s opsec, and opsec has the same response to both queries.

                I can’t go around answering “can’t say” to every question someone might have about my work throughout my career just because of the handful of actually classified things that I do know.

                No, you answer “can’t say” to questions that would be classified (or opsec) if they applied to you.

                And no one routinely asks me questions like that. It was an illustration.

                So, what kinds of things do you routinely lie about ethically. If your example wasn’t valid, give me a valid example.

                I take that back: A recruiter or manager who is interviewing me to potentially hire me to do work for them would indeed have good reason to go over my resume, line-by-line, and ask me about each of the things on it.

                By the time we’re done, I will have made it sound as though nothing I ever did was classified.

                Um, I don’t follow. If you’re in an unclassified space or the manager is uncleared, you won’t be talking about anything classified anyway. Hiring managers in the cleared government work fields would have to be incompetent to assume some who lists an S or TS clearance has not done any classified work. They should know resumes are sanitized.

              • Dwayne you might as well give up. Tgt will keep you on this treadmill forever.

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