tection of homeland security as one of the aims of the policy. The list
of categories of information that could be properly classiÔ¬Āed was also
expanded to include information relating to homeland security, such as
information on vulnerabilities of domestic infrastructure or activities in
defense against transnational terrorism. (See section 1.4(g) of the revised
57. See Federal Register 66.239 (December 12, 2001), pages 64345‚Ä“64347;
Federal Register 67.189 (September 30, 2002), pages 61463‚Ä“61465; and
Federal Register 67.90 (May 9, 2002), page 31109. The EPA brieÔ¬‚y held
similar authority in the 1980s.
58. Data on the number of clearance decisions made by early 2004 is
contained in General Accounting OfÔ¬Āce, Security Clearances: FBI Has
Enhanced Its Process for State and Local Law Enforcement OfÔ¬Ācials, GAO-
04-596 (Washington, DC: General Accounting OfÔ¬Āce, 2004). The policy
of providing clearances to state and local ofÔ¬Ācials was endorsed in the
Homeland Security Act, section 891(b)(6).
59. Information Security Oversight OfÔ¬Āce, ClassiÔ¬Āed Information Nondisclo-
sure Agreement, Rev. 1-03, Standard Form 312 (Washington, DC: Informa-
tion Security Oversight OfÔ¬Āce, 2003). In August 2003, Homeland Secu-
rity Secretary Tom Ridge conÔ¬Ārmed that all state governors had signed
nondisclosure agreements. Tom Ridge, Speech to the National Governors‚Ä™
Notes to Pages 142‚Ä“145
Association (Washington, DC: U.S. Department of Homeland Security,
60. A state ofÔ¬Ācial might argue that the shared information is not under the
control of a state agency, and therefore not subject to state law, because
of terms included in the nondisclosure argument. Alternatively, a state
agency might argue that disclosure requirements contained in state law
are simply trumped by the federal government‚Ä™s restrictions. The fed-
eral government asserts that rules governing the classiÔ¬Ācation system ‚Ä“
contained in Executive Order 12958 ‚Ä“ are drafted on the basis of the Presi-
dent‚Ä™s constitutional authority to regulate information relating to national
security. Courts are likely to accept the argument that these federal rules
preempt state law, particularly if national security is said to be at risk.
61. Hearing of the National Security, Emerging Threats and International
Relations Subcommittee of the House Government Reform Committee,
August 24, 2004.
62. David Walker, Statement on the 9/11 Commission Report: Reorganization,
Transformation, and Information Sharing, GAO-04-10333T (Washington,
DC: Government Accountability OfÔ¬Āce, 2004), 11.
63. Robert Jordan, Statement before the Senate Committee on the Judiciary
on Information Sharing Initiatives (Washington, DC: Federal Bureau of
64. OfÔ¬Āce of Homeland Security, National Strategy for Homeland Security,
25‚Ä“26, Congressional Joint Inquiry, Findings and Conclusions of the Con-
gressional Joint Inquiry into September 11, 88‚Ä“89 and 361.
65. Letter, Stuart A. Maislin, Los Angeles Police Department, to author, Octo-
ber 28, 2003. The Chicago and New York Police Departments also refused
to release their MOU.
66. Sue Lindsay, ‚ÄúACLU Is Suing City over Work of FBI,‚ÄĚ Rocky Mountain
News, October 16, 2003, 24A.
67. The FBI‚Ä™s correspondence to the City of SpringÔ¬Āeld, and correspondence
among the City, the university and the Massachusetts ACLU, were pro-
vided by the ACLU.
68. In response to a Freedom of Information Act request.
69. The deputation of state and local law enforcement personnel appears to
be authorized by 21 USC 878. This provision stipulates that deputized
personnel shall be deemed to be federal employees for the purposes of
several provisions listed in 5 USC 3374(c)(2). One of these provisions is
a criminal penalty for the unauthorized disclosure of conÔ¬Ādential infor-
mation acquired in the course of an investigation (18 USC 1905).
70. Eric Lichtblau, ‚ÄúFBI Scrutinizes Antiwar Rallies,‚ÄĚ New York Times,
November 23, 2003, 1.
71. Eric Lichtblau, ‚ÄúFBI Goes Knocking for Political Troublemakers,‚ÄĚ New
York Times, August 16, 2004, A1.
72. Karen Abbott, ‚ÄúFBI Admits Probe,‚ÄĚ Rocky Mountain News, July 29, 2004,
73. Kieran Nicholson, ‚ÄúContempt Citations Loom Via Spy Files,‚ÄĚ Denver Post,
May 16, 2003, B3.
Notes to Pages 145‚Ä“151
74. Sarah Kershaw, ‚ÄúIn Portland, Ore., a Bid to Pull out of Terror Task Force,‚ÄĚ
New York Times, April 23, 2005, A8.
75. Lowell Jacoby, Statement for the Record for the Joint 9/11 Inquiry
(Washington, DC: Defense Intelligence Agency, 2002).
76. Rolf Palmer, Presentation on the Joint Regional Information Exchange Sys-
tem for the Annual Security Symposium of the National Defense Industrial
Association (Defense Intelligence Agency, 2003).
77. Department of Homeland Security, Homeland Security Launches Expan-
sion of Information Exchange System (Washington, DC: Department of
Homeland Security, 2004).
78. In a letter written in response to a request under the Illinois Freedom of
79. The agreement was released in response to a request under the Texas
Public Information Act.
80. Ian Hoffman, Sean Holstege, and Josh Richman, ‚ÄúState Monitored War
Protesters,‚ÄĚ Oakland Tribune, May 18, 2003; Josh Richman, ‚ÄúLockyer
Shakes up Anti-Terror Agency,‚ÄĚ Oakland Tribune, May 23, 2003.
81. Strictly, there are two schemes: one for ‚Äúcritical infrastructure informa-
tion,‚ÄĚ and the other for ‚Äúcritical energy infrastructure information.‚ÄĚ These
policies, as well as the policy on sensitive homeland security information,
are discussed in more detail in the following article: Alasdair Roberts,
‚ÄúORCON Creep: Networked Governance, Information Sharing, and the
Threat to Government Accountability,‚ÄĚ Government Information Quar-
terly 21, no. 3 (2004): 249‚Ä“267.
82. Manuel Castells, The Rise of the Network Society, Vol. 1: The Informa-
tion Age (Malden, MA: Blackwell Publishers, 1996), 164‚Ä“172. Castells is
describing the private sector, but comparable arguments have been made
about the public sector.
83. Ronald Diebert and Janice Gross Stein, ‚ÄúSocial and Electronic Networks
in the War on Terror,‚ÄĚ in Bombs and Bandwidth, ed. Robert Latham (New
York: The New Press, 2003), 159‚Ä“160.
84. While conducting research in the British archives on the United King-
dom‚Ä™s role within NATO in its early years, I found that Foreign OfÔ¬Āce Ô¬Āles
had been carefully cleaned of any documents that had been sent by NATO
a half-century earlier.
85. According to the Department of Justice‚Ä™s 2003 annual report on the admin-
istration of the Freedom of Information Act, the median processing time
for complex requests was over 370 days.
7. The corporate veil
1. State of the Union Address, January 23, 1996.
2. Daniel Yergin and Joseph Stanislaw, The Commanding Heights (New York:
Simon & Schuster, 1998).
3. David Osborne and Ted Gaebler, Reinventing Government (New York:
Notes to Pages 151‚Ä“154
4. Anthony Giddens, The Third Way and Its Critic (Cambridge, United
Kingdom: Polity Press), 55‚Ä“56.
5. Alasdair Roberts, Transborder Service Systems: Pathways for Innovation or
Threats to Accountability? (Washington, DC: IBM Center for the Business
of Government, 2004).
6. P. W. Singer, ‚ÄúWarriors for Hire in Iraq,‚ÄĚ Salon.com, April 15, 2004.
7. Ian Traynor, ‚ÄúThe Privatisation of War,‚ÄĚ The Guardian, December 10,
8. Singer, ‚ÄúWarriors for Hire in Iraq.‚ÄĚ
9. Acacia Prison Services Agreement, between the State of Western Australia
and Corrections Corporation of Australia Pty Ltd., 2000.
10. AAP Newsfeed, ‚ÄúWA Govt Publishes Prison Contract Details on Internet,‚ÄĚ
March 23, 2000.
11. Paul Moyle, ‚ÄúPrivate Prison Research in Queensland, Australia: A Case
Study of Borallon Correctional Centre, 1991,‚ÄĚ in Private Prisons and
Police: Recent Australian Trends, ed. P. Moyle (Leichhardt, Australia: Pluto
Press, 1994), 148‚Ä“150; Paul Moyle, ProÔ¬Āting from Punishment: Private Pris-
ons in Australia (Annandale, New South Wales: Pluto Australia, 2000),
12. Richard Harding, Private Prisons in Australia: The Second Phase
(Canberra: Australian Institute of Criminology, 1997), 1.
13. Arie Freiberg, ‚ÄúCommercial ConÔ¬Ādentiality, Criminal Justice and the Pub-
lic Interest,‚ÄĚ Current Issues in Criminal Justice 9, no. 2 (1997): 125, 139;
Arie Freiberg, ‚ÄúCommercial ConÔ¬Ādentiality and Public Accountability for
the Provision of Correctional Services,‚ÄĚ Current Issues in Criminal Justice
11, no. 2 (1999): 119‚Ä“134.
14. Liz Curran, ‚ÄúUnlocking the Doors on Transparency and Accountability,‚ÄĚ
Current Issues in Criminal Justice 11, no. 2 (1999): 135‚Ä“152, 145.
15. The Age, ‚ÄúPrivate Prisons, Public Rights,‚ÄĚ May 23, 1999.
16. Finn Poschmann, Private Means to Public Ends: The Future of Public-
Private Partnerships (Toronto: C.D. Howe Institute, 2003), 14.
17. Ibid., 22. See also Order P-1516 of the Information and Privacy Commis-
sioner of Ontario.
18. Parts of the contract were eventually released. Dan McDougall, ‚ÄúNumbers
Just Don‚Ä™t Add Up,‚ÄĚ The Scotsman, May 21, 2004, 2.
19. allAfrica.com, ‚ÄúSecret Contracts Row Puts Spotlight on Water Manage-
ment,‚ÄĚ AllAfrica News, March 22, 2003.
20. The Irish and New Zealand laws treat contractor records as though they
were held by the contracting agency, so that they are subject to disclo-
sure requirements. A few state laws in the United States take a similar
approach. However, these provisions are often interpreted narrowly by
courts: Alasdair Roberts, ‚ÄúStructural Pluralism and the Right to Infor-
mation,‚ÄĚ University of Toronto Law Journal 51, no. 3 (2001): 243‚Ä“271,
21. Maude Barlow and Tony Clarke, Blue Gold (Toronto: Stoddart, 2002), 92.
22. Michael Hedges, ‚ÄúIraq Prison Scandal,‚ÄĚ Houston Chronicle, May 6,
Notes to Pages 154‚Ä“157
23. Strasser, The Abu Ghraib Investigations, 146‚Ä“147.
24. Taguba, Article 15‚Ä“6 Investigation of the 800th Military Police Brigade, 44.
The Schlesinger panel report also criticized the inadequate training pro-
vided to CACI and other contractor staff: Strasser, The Abu Ghraib Inves-
25. ACLU v. Department of Defense, et al., United States District Court, South-
ern District of New York, September 15, 2004.
26. Joshua ChafÔ¬Ān, ‚ÄúContract Interrogators Hired to Avoid Supervision,‚ÄĚ
Financial Times, May 21, 2004, 6; John Cushman, ‚ÄúPrivate Company Finds
No Evidence Its Interrogators Took Part in Prison Abuse,‚ÄĚ New York Times,
August 13, 2004, 8.
27. Fox ButterÔ¬Āeld, ‚ÄúJustice Dept. Report Shows Trouble in Private U.S. Jails
Preceded Job Fixing Iraq‚Ä™s,‚ÄĚ New York Times, May 21, 2004, 22.
28. Gary Salazar, ‚ÄúInmate‚Ä™s Mom Seeks Answers,‚ÄĚ Albuquerque Journal, April
17, 2003, 1.
29. Julie Ann Grimm, ‚ÄúParties Settle Inmate Suicide Lawsuit,‚ÄĚ Sante Fe New
Mexican, June 12, 2004, B1.
30. In 2004, 42 percent of the state‚Ä™s prisoners were in private prisons:
Dan Shingler, ‚ÄúPrisoners for ProÔ¬Āt?‚ÄĚ Albuquerque Tribune, July 26, 2004,
31. In 1996, Corrections Corporation of America reached a settlement with
the New Mexico Foundation for Open Government in which it agreed to
release basic information about its prisoners, without conceding that it
was subject to the state‚Ä™s public records law: Albuquerque Journal, ‚ÄúPact
AfÔ¬Ārms Open Records,‚ÄĚ October 23, 1996, 4.
32. P. W. Singer, Corporate Warriors, Cornell Studies in Security Affairs (Ithaca,
NY: Cornell University Press, 2003), x.
33. Ibid., 152‚Ä“168.
34. Daniel Guttman, ‚ÄúGovernance by Contract: Constitutional Visions; Time
for ReÔ¬‚ection and Choice,‚ÄĚ Public Contract Law Journal 33, no. 2 (2004):
35. Robert O‚Ä™Harrow, Jr., and Ellen McCarthy, ‚ÄúPrivate Sector Has Firm Role
at the Pentagon,‚ÄĚ Washington Post, June 9, 2004, E1.
36. Government Accountability OfÔ¬Āce, Interagency Contracting: Problems
with DoD‚Ä™s and Interior‚Ä™s Orders to Support Military Operations, GAO-05-
201 (Washington, DC: Government Accountability OfÔ¬Āce, 2005), 3.
37. Eric Eckholm, ‚ÄúMemos Warned of Billing Fraud by Firm in Iraq,‚ÄĚ New
York Times, October 23, 2004, 1; Joshua ChafÔ¬Ān, ‚ÄúHalliburton Workers
Paint a Portrait of a Disorganized Company,‚ÄĚ Financial Times, June 16,
38. Singer, Corporate Warriors, 222; Robert Capps, ‚ÄúOutside the Law,‚ÄĚ
Salon.com, June 26, 2002, Web: http://www.salon.com/news/feature/2002/
39. Shirley Downing, ‚ÄúOfÔ¬Ācials Still Seek Cause of Riots at Two Prisons,‚ÄĚ The
Commercial Appeal, October 31, 1995.
40. Janice Morse, ‚ÄúGuards Faulted in Escapes,‚ÄĚ The Cincinnati Enquirer,
August 5, 1998, B1.
Notes to Pages 157‚Ä“161
41. E. S. Savas, Privatization and Public-Private Partnerships (New York:
Chatham House Publishers, 2000), 259‚Ä“266.
42. Andrew Parker and George Parker, ‚ÄúUtilities Win Fight to Curb Freedom
Act Impact,‚ÄĚ Financial Times of London, July 22, 1998, 8.
43. Martin Mittelstaedt, ‚ÄúHydro Lobbying Won Change to Law,‚ÄĚ Toronto
Globe and Mail, January 26, 2001, A17. The restructuring plan encoun-
tered substantial problems, and in 2004 a new provincial government
brought Ontario Power Generation and Hydro One, the transmission
company, back under the provincial Freedom of Information law.
44. Shawn McCarthy, ‚ÄúBrownouts Were Deliberate, Group Says,‚ÄĚ Toronto
Star, June 30, 1990, C1.
45. Australian Law Reform Commission, Open Government: A Review of the
Federal Freedom of Information Act 1982, 77 (Canberra: Australian Law
Reform Commission, 1995), Para. 16.17.
46. Greg Palast, Jerrold Oppenheim, and Theo MacGregor, Democracy and
Regulation (London: Pluto Press, 2003), 185.
47. Ibid., 9‚Ä“10, 21, 125, 171.
48. Ibid., 151‚Ä“155; Bethany McLean and Peter Elkind, The Smartest Guys in
the Room (New York: Portfolio, 2004).
49. Dennis Berman, ‚ÄúOnline Laundry: Government Posts Enron‚Ä™s E-Mail,‚ÄĚ
Wall Street Journal, October 6, 2003, A1.
50. Neil Gunningham and Joseph Rees, ‚ÄúIndustry Self-Regulation: An Institu-
tional Perspective,‚ÄĚ Law and Policy 19, no. 4 (1997): 363‚Ä“414; A. Michael
Froomkin, ‚ÄúWrong Turn in Cyberspace: Using ICANN to Route around the
APA and the Constitution,‚ÄĚ Duke Law Journal 50 (2000): 17‚Ä“186; Daniel
Drezner, ‚ÄúThe Global Governance of the Internet: Bringing the State Back
In,‚ÄĚ Political Science Quarterly 119, no. 3 (2004): 477‚Ä“498.
51. Michael Walzer, ‚ÄúLiberalism and the Art of Separation,‚ÄĚ Political Theory
12, no. 3 (1984): 315‚Ä“330.
52. The various approaches taken in American state law are discussed by