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Monday, March 2, 2009

Gov. Paterson Will Not Release Information on How Hilary Clinton's Successor Was Picked

And, his staff is changing quickly - after receiving pay raises.

The First Amendment to the U.S. Constitution says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Information is power, dear reader. Often the public is not given appropriate and timely information because those in powerful positions dont want anyone seeing what is going on behind closed doors. Government should be transparent.

QUICKLINK New York · February 23, 2009 · Freedom of information
N.Y. governor won't release candidates' questionnaires

The governor of New York has refused to release the questionnaires completed by candidates who sought to fill Hillary Clinton's vacated U.S. Senate seat.

The Associated Press reports it requested the documents under New York’s Freedom of Information Law. The questionnaire -- essentially an applicant background check -- was sent to an unknown number of candidates as part of Gov. David Paterson's vetting process, which resulted in the appointment of upstate New York lawyer Kirsten Gillibrand (pictured at right and below with Mrs. Clinton) to the junior senator seat. The form requested information on professional licenses, URLs for personal blogs and Facebook pages, and whether the candidate had ever hired an illegal immigrant.

The Paterson administration refused to release any portion of the questionnaires on the grounds that doing so would violate candidates’ privacy, the AP said.

Blair Horner of the New York Public Interest Research Group (pictured below at NYPIRG's 35th Anniversary) told the AP the governor appeared to intentionally limit the records it created during the vetting process "to avoid FOIL." He, along with other open government advocates, called for the release of the records related to the process separate from AP's request.

— Dana Liebelson, 5:06 pm

N.Y. governor rebuffs AP request for Senate-pick records
By The Associated Press, 02.21.09

ALBANY, N.Y. — Gov. David Paterson is refusing to make public any of the responses candidates gave to his written questions in his much-criticized process to appoint a U.S. senator, or to provide a list of who was considered for the job.

Responding to a request by the Associated Press under New York’s Freedom of Information Law, the Paterson administration said it kept no list of candidates and that their responses to questions, even on public policy issues, should be kept secret under a legal provision intended to protect people’s privacy and safety.

“That’s mind boggling,” said Blair Horner of the New York Public Interest Research Group.

He suspects Paterson and his staff purposely avoided taking notes and making lists to protect the secrecy of the process that culminated in the Jan. 23 appointment of Rep. Kirsten Gillibrand.

“It was pretty clear from the beginning that the governor wanted to avoid FOIL, so they would do everything they could not to leave a paper trail,” Horner said.

Robert Freeman, executive director of the state Committee on Open Government, had called for Paterson to release the blank questionnaire during the process. Freeman maintained that some of the responses also probably should have been made public, but he said the administration isn’t required to create records after the fact.

Throughout the process begun in December, Paterson refused to identify anyone who expressed interest in the seat being vacated by Hillary Rodham Clinton, now secretary of state. Paterson wouldn’t say how many candidates applied, and at various times he estimated the field at a dozen or more than 20.

The candidates who publicly identified themselves included Caroline Kennedy, Gillibrand, several other members of Congress and Nassau County Executive Tom Suozzi. During the decision process, none would release the extensive questionnaire seeking background information such as family status, investments, any criminal record as well as education and career data.

Gillibrand posted her complete questionnaire on her Web site after she was selected but blacked out some information.

“They simply cannot defend the position that those records are exempt from FOIL,” Horner said. “They are certainly within their rights to redact certain information from the forms, but I cannot imagine under any scenario that they are put in risk of personal harm if their name was released.

“I don’t get it,” Horner said. “This is supposed to be the open, transparent government. Instead we’re getting stonewalled.”

The AP is appealing the administration’s response.

Paterson’s press officers did not respond to questions about the administration’s response in time for this story.

State law provides for, but doesn’t require, the retention of “certain essential records documenting the governor’s major accomplishments,” said Bob McDonnell, head of the state’s retention scheduling unit in the state archives.

Those records include letters, communications, directives, and “related supporting documents received or generated by the government and executive chamber staff.”

N.Y. official questions governor's process for picking senator


LBANY, N.Y. — Gov. David Paterson's secretive process to select Hillary Rodham Clinton's successor in the U.S. Senate conflicts with his campaign promises to open up government and New York's top regulator of open-government laws says it appears to violate state law.

Just days from announcing his choice, Paterson won't identify "about 10" people he says are in the running to follow Clinton. He won't release the blank questionnaire he sent to each of them looking for background information. He won't turn over the candidates’ completed forms. And the public isn't getting any idea how the hopefuls feel about broad or regional public issues — or even if public policy is being discussed.

"The process is confidential," is the stock answer from his office for the appointment to what has been called the world's most exclusive club.

The list of hopefuls and the questions posed to them in the questionnaire seem to most clearly violate the state's post-Watergate freedom-of-information laws designed to make sure government officials are accountable to the public. And at least some of the answers by candidates in their background checks should likely be public, too.

"How could it not be public? It's a blank form," said Robert Freeman, executive director of the state Committee on Open Government, the state agency that regulates enforcement of the good-government laws. Since 1976 Freeman, a lawyer, has been the top state employee who advises government and the public on interpretation of the public officers' law.

The names of those under consideration — among them Caroline Kennedy, perhaps state Attorney General Andrew Cuomo, several members of Congress and other elected officials — should also be disclosed, Freeman said.

"In my mind, the identities of those seeking one of the highest offices in the land would not rise to the level of unwarranted invasion of personal privacy," Freeman told the Associated Press in an interview.

Some case law also would appear to go against Paterson. A court found not even a village board could legally go into a closed-door executive session to discuss filling a vacant seat. Freeman said state law in some ways recognizes less privacy protection for those in public office or seeking public office compared to private citizens.

Cuomo, who as attorney general is the governor's lawyer, didn't respond to a question of whether he supported the secretive process. Cuomo has refused to say if he is seeking the Senate seat.

"Their personal privacy does not trump the public's right to know who their next senator will be," said Blair Horner of the New York Public Interest Research Group.

Horner says the need is particularly acute in light of accusations that Illinois Gov. Rod Blagojevich (at right) tried to sell to the highest bidder his appointment for the vacant Senate seat of President-elect Barack Obama.

"So why doesn't Governor Paterson get the candidates to pledge they won't raise campaign funds for him, so his appointment is not seen as just in the best of interest of his own political position?" Horner said.

Paterson's spokesmen wouldn't respond to that question yesterday.

Paterson said yesterday that he hadn't publicly disclosed the information he had received from potential candidates because the request wasn't "a government action. That was a personal request I made of the candidates. Some of the information was rather private."

At a news conference, Paterson said the list of candidates is "personal."

"The law is on his side as far as whether he has to do any of this with transparency," said Barbara Bartoletti (pictured below) of the League of Women Voters. "But good government is not on his side here."

A copy of the questionnaire to applicants, obtained by The New York Times after Paterson's office refused to release it, asks about finances and job history, but not about policy positions.

"I don't think I've heard any public positions," Bartoletti said. She noted that most of the hopefuls are in office and so have a record for the public to judge. The exception is the perceived front-runner — Caroline Kennedy — who has never held public office and has guarded her political opinions and privacy.

Meanwhile, Kennedy continued her efforts to reach out to political leaders and state and local officials.

While stopping short of a traditional campaign, Kennedy has been courting local power brokers. U.S. Rep. Eliot Engel released a photograph of Kennedy's meeting with him and state Assemblyman Jeffrey Dinowitz yesterday. And on Jan. 11, she traveled to Brooklyn to meet with black lawmakers.

In 2005, then-state Sen. Paterson relied on sarcasm when some of Albany's notorious secrecy was peeled back after some outrage by himself, voters and good-government groups.

"I'm astounded that I'm here," said Paterson at his first public budget negotiation that included minority party leaders.

Then, as a candidate for lieutenant governor in 2006, reform was central to his platform shared by Eliot Spitzer, whom Paterson would succeed a year later following a prostitution scandal.

"Reform is the biggest joke that the Legislature tries to perpetrate on the public, and the public is not laughing," Paterson said in 2006.

"This governor ran on a ticket whose major thrust was government reform and that's what people thought they would get when they elected that team," Bartoletti said. "I think everybody is watching."

Open-government agency chief says secrecy surrounding David Paterson's selection of Hillary Clinton's successor may violate state law.
First Amendment Center, 01.13.09


N.Y. governor won't seek leaker of Kennedy rumors

'You have a First Amendment right to protect your sources,' David Paterson tells reporters in announcing he won't probe accusations spread after Caroline Kennedy quit contest to be state's next U.S. senator.

Shield Laws, Subpoenas, and Confidentiality Cases

Bush officials mount campaign against media-shield bill
By The Associated Press, 04.04.08

WASHINGTON — Attorney General Michael Mukasey and three other top Bush administration officials are weighing in against legislation that would allow reporters to protect the identities of confidential sources who provide sensitive, sometimes embarrassing information about the government.

The "Free Flow of Information Act" proposed by Republican Sen. Arlen Specter could harm national security and would encourage more leaks of classified information, the four officials wrote in letters to senators made public yesterday.

The legislation gives an overly broad definition of journalists that "can include those linked to terrorists and criminals," wrote Mukasey and National Intelligence Director Mike McConnell.

"All individuals and entities who 'gather' or 'publish' information about 'matters of public interest' but who are not technically designated terrorist organizations, foreign powers or agents of a foreign power will be entitled to the bill's protections," Mukasey and McConnell stated in their joint letter.

Specter, the top Republican on the Senate Judiciary Committee, responded: "My staff met today with DNI and DoJ officials regarding the concerns expressed in the letter, and we are considering them."

"I think the legislation has an important purpose," Specter added. "I think we can make reasonable accommodations to their concerns, and we're working on it."

In a separate letter, Defense Secretary Robert Gates said the nation would be more vulnerable to "adversaries' counterintelligence efforts to recruit" those shielded by the bill.

Homeland Security Secretary Michael Chertoff said the bill would create roadblocks to gathering information "from anyone who can claim to be a journalist, including bloggers" and Internet service providers.

The opposition of the top Bush administration officials follows recent high-profile episodes in which reporters have fought efforts to reveal their government sources.

Former USA Today reporter Toni Locy is seeking to reverse a contempt of court citation for refusing to reveal her Justice Department and FBI sources for stories about the criminal investigation of the 2001 anthrax attacks.

Among the government leakers of CIA operative Valerie Plame's identity, it turns out, were President Bush's then-top political adviser, Karl Rove, and Vice President Dick Cheney's former chief of staff, I. Lewis "Scooter" Libby.

Former New York Times reporter Judith Miller spent 85 days in jail for refusing to identify Libby to investigators.

The leaks of Plame's identity occurred after Plame's husband publicly accused the administration of twisting prewar intelligence to exaggerate the Iraqi threat.

Special Counsel Patrick Fitzgerald eventually won convictions against Libby for perjury, obstruction and lying to the FBI. Bush commuted Libby's 30-month prison sentence.

Co-sponsors on the bill include Senate Judiciary Committee Chairman Patrick Leahy and Sens. Barbara Boxer, Christopher Dodd, Charles Schumer and Tim Johnson, all Democrats; along with Republican Sens. Lindsey Graham of South Carolina and Richard Lugar of Indiana.

“We've already sought to address these security concerns in a careful way," Schumer said in a statement. "The administration ought to overcome its visceral dislike of the media and do the right thing."

House votes to give journalists shield for confidential sources
By The Associated Press, 10.17.07

WASHINGTON — The House of Representatives yesterday strongly backed the right of reporters to protect the confidentiality of sources in most federal court cases, saying that right was crucial to a free and effective press. The White House, warning that the media-shield bill would encourage leaks of classified information, threatened a veto.

Under legislation that passed 398-21, reporters could still be compelled to disclose information on sources if that information was needed to prevent acts of terrorism or harm to the national security.

That was not enough for the White House, which said the privileges for reporters "could severely frustrate — and in some cases completely eviscerate — the ability to investigate acts of terrorism or threats to national security."

Advocates of press freedom have pushed the issue this year in the wake of several high-profile cases, including subpoenas for reporters to testify in a probe into the leak of a CIA operative's identity.

Supporters pointed to press reports on Abu Ghraib, clandestine CIA prisons and shoddy conditions at Walter Reed Army Medical Center veterans hospital as examples where source confidentiality was crucial.

"Freedom of the press is fundamental to our democracy and it is fundamental to our security," House Speaker Nancy Pelosi said.

“The federal government's policies and actions should protect and preserve the press's ability to speak truth to power, and this legislation does so with appropriate national security safeguards, striking a careful balance between liberty and security,” the California Democrat said.

More than 50 news outlets, including the Associated Press, support the bill, which faces an uncertain future in the Senate. A similar bill, S. 2035, sponsored by Pennsylvania Republican Sen. Arlen Specter, cleared the Senate Judiciary Committee earlier this month, but it is uncertain if the full Senate will take it up in the final legislative weeks of this year.

Indiana Republican Rep. Mike Pence, a conservative who co-sponsored H.R. 2102 with Virginia Democratic Rep. Rick Boucher, said he promoted the bill because "I believe the only check on government power in real time is a free and independent press." The act, he said, "is not about protecting reporters, it's about protecting the public's right to know."

Pence also said: “It is arguable in fact that the Free Flow of Information Act is the first legislation regarding the freedom of the press since the words 'Congress shall make no law ... abridging the freedom of speech, or of the press' were added to the Constitution. As such, and I say humbly, passage of this legislation today would be both momentous and historic.”

The Justice Department and the Office of the Director of National Intelligence are on record as opposing the legislation, saying it would make it nearly impossible to enforce federal laws pertaining to the unauthorized release of classified information. Justice also said the bill's definition of who is a journalist was too broad.

But backers said the bill was crafted to strike a balance between the need to protect a reporter's sources and the need for courts to see critical pieces of information.

Exceptions to the reporter shield are allowed to prevent an act of terrorism, apprehend the source of a past terrorist attack or stop harm to national security. Disclosures can also be ordered to prevent imminent death or significant bodily harm, or to identify a person who has revealed trade secrets or information involving personal medical or financial records.

Just before passage, the House accepted language by Texas Republican Rep. Lamar Smith, the lead opponent of the bill, allowing judges to consider the public interest in forcing disclosure in all cases involving leaks that could be harmful to national security, not just criminal cases.

“The First Amendment of the Constitution guarantees the press their freedom to report, and for 200 years in this nation the press has flourished,” Smith said. “Information has flowed freely. And that is why I believe this bill is simply a solution in search of a real problem."

The final bill consists of "a lot of compromising," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "This has required enormous amounts of time and money and effort" by news and nonprofit groups. Pushing a legislative agenda, she said, "does not come natural to us."

The impetus, she said, was more than 40 cases in the past three years where reporters have been asked to identify sources or testify in federal criminal and civil cases.

"America is not a country where journalists should be jailed," said Clint Brewer, national president of the Society of Professional Journalists. "This bill will allow the working press and those acting as journalists to serve society without fear of reprisal or intrusion from overzealous prosecutors."

Former New York Times reporter Judith Miller was jailed for 85 days in 2005 for refusing to identify which Bush administration officials had talked with her about CIA agent Valerie Plame.

The Justice Department, in questioning the need for the legislation, said it had approved the issuances of subpoenas to reporters seeking confidential source information in only 19 cases between 1992 and 2006.

The Supreme Court in 1972 ruled in Branzburg v. Hayes that journalist-source relationships were not protected under the Constitution, and currently reporters have no privileges to refuse to appear and testify in federal legal proceedings. The situation is different in state courts, with 33 states having media shield statutes and 16 others with judicial precedents protecting reporters.

House Judiciary Committee Chairman John Conyers, D-Mich., said, “In recent years the press has been under assault, as reporters are increasingly being imprisoned for obstruction of justice and other charges... . Today we are here in an attempt to reclaim one of the most fundamental principles enshrined by the Founding Fathers. Freedom of the press is the cornerstone of our democracy.

But the problem of getting timely and appropriate information is national:

CIA Destroyed 92 Interrogation Tapes
Agency Admits It Destroyed More Tapes Than Was Previously Believed

By PIERRE THOMAS and JASON RYAN, March 2, 2009

The CIA has destroyed nearly 100 interrogation tapes of terror suspects, a number far greater than was previously acknowledged by the agency.

The agency's admission came in new documents filed in a lawsuit seeking details about the treatment of detainees in U.S. custody outside the country.

The agency "can now identify the number of videotapes that were destroyed" stated a letter from government attorneys to the judge presiding over the case. "Ninety-two videotapes were destroyed."

The tapes purportedly show CIA agents using harsh interrogation techniques, such as waterboarding, on terror suspects. The Obama administration has condemned that technique, with Attorney General Eric Holder calling it torture.

"The large number of videotapes destroyed confirms that the agency engaged in a systemic attempt to hide evidence of its illegal interrogations and to evade the court's order," American Civil Liberties Union staff attorney Amrit Singh said in a statement.

He added that it's "time to hold the CIA accountable for its flagrant disregard for the rule of law." Motions filed in the case have been pending for more than a year.

But CIA spokesman Paul Gimigliano said the number of tapes revealed in the court documents does not contradict past statements.

"We never said publicly how many tapes from the agency's detention program were destroyed, so it's wrong for people to claim the figure is higher than before," he said. "That's just not true."

"If anyone thinks it's agency policy to impede the enforcement of American law, they simply don't know the facts," Gimigliano's statement concluded.

The March 2 letter, addressed to U.S. District Court Judge Alvin Hellerstein, indicated that the CIA is culling more records pursuant to the case but noted that some of the information might be classified.

In addition to the ACLU's lawsuit, the CIA has been under fire since December 2007, when then-CIA Director Michael Hayden acknowledged that the agency had destroyed several interrogation tapes in 2005.

Those recordings, made three years earlier, featured interrogations of two detainees, including key al Qaeda suspect Abu Zubaydah.

After divulging the news of the 2005 tape destruction, then-director Hayden acknowledged that there were more tapes beyond those originally discovered in connection with the Moussaoui appeal, though did not give an exact number of tapes involved.

Hayden had said that tapes were no longer of value to the agency, and were destroyed to keep the identities of the interrogators confidential. He also said that the agency notified the appropriate lawmakers about the action.

The Justice Department is investigating the 2005 tape destruction, and John Durham, the career prosecutor tasked with the inquiry, is expected to wrap up his probe soon.

It's not clear when the other tapes were destroyed, but the ACLU contends that those tapes should have been turned over pursuant to a Freedom of Information Act request it filed, and claims the tapes were also withheld from the 9/11 Commission.

Additionally, before the trial of the only terror suspect indicted in the Sept. 11, 2001, attacks, the CIA had told the Justice Department that it did not have any interrogation tapes.

Moussaoui Appeal Reveals CIA Tape Information
Zacarias Moussoui pleaded guilty to terror charges, and a federal judge sentenced him to life in prison in 2006.

But Moussaoui's lawyers have filed an appeal, contending that government officials withheld evidence from his defense, and that the CIA had submitted inaccurate declarations to the U.S. District Court that no recordings of detainee interrogations existed.

In late 2007, court documents filed in the appeal revealed that the CIA had obtained three recordings "under unique circumstances involving separate national security matters unrelated to the Moussaoui Prosecution."

Government attorneys submitted transcripts to the court, but said it was unclear from the court documents whether the tapes still existed.

In his statement, CIA spokesman Gimigliano said that the tapes mentioned in the 2007 filings in the Moussaoui case are not the same as the tapes referred to in the ACLU suit.

"Those three tapes still exist. It's a separate issue," he said.

As for the most recent admission from the CIA concerning the 92 destroyed tapes, Moussaoui's legal team had learned of their existence as much as a month ago.

In transcripts declassified and released late last Friday, Moussaoui's lawyers say that the revelation that there "could be a whole bunch of other tapes" should cause the case to be sent back to the court that originally handled the case.

The U.S. Court of Appeals for the Fourth Circuit is currently considering that request.

Last summer, then-Attorney General Michael Mukasey notified lawmakers that he would not appoint a special prosecutor to investigate the actions of CIA interrogators.

Noting that Justice Department lawyers had authorized the controversial techniques, Mukasey said in a letter to House Judiciary Chairman Rep. John Conyers, D-Mich., that "it would be unwise and unjust to expose to possible criminal penalties those who relied in good faith on those prior Justice Department opinions."

ABC News' Ariane de Vogue contributed to this report.

Chilling Effects Clearinghouse
The Brechner Center For Freedom of Information
The California First Amendment Coalition
Americans For the arts: Cultural Policy Listserv
Center For First Amendment Studies
Sunshine in Government Initiative
The FOI Advocate