Scalia's Dirty Little Secrets

Last week the Web site the Memory Hole (www.thememoryhole.org) posted several declassified documents from the mid-Seventies when the federal battle over strengthening the Freedom of Information Act was at its height – and according to the documents, Supreme Court Justice Antonin Scalia was among the law's biggest foes. In 1974 Scalia was working as the assistant attorney general in charge of the Department of Justice's Office of General Counsel where he officially encouraged a presidential veto of the bill, designed to give strength to the original, and extremely weak, FOIA passed in 1966. President Gerald Ford did veto the 1974 FOIA law, but was overridden by Congress.

Even then, the law's passage did not deter Scalia from rallying against it. As part of the Interagency Classification Review Committee, Scalia was charged with deciding which documents should be declassified. According to a January 1975 memo, the ICRC strategy was to try to force litigation regarding release of documents under the FOIA, in order to set up case law that would favor withholding information. As representative of the DOJ, Scalia's apparent addition to the discussion was to secure a "so-called disinterested review" of the government's decision to deny the release of records, in order to convince a court that the government's motives, and interests, were pure.

More recently, Scalia's position as a champion of opaque government showed itself again on April 7 during a speech to Mississippi high school students. According to the Hattiesburg American, while Scalia was delivering a speech on the importance of protecting constitutional rights, a federal marshal was simultaneously confiscating tape recorders from two reporters who were there covering the event. Although there was no prior announcement prohibiting the recording of Scalia's remarks, the federal marshal told the reporters that Scalia had asked that his speech not be recorded.

"Our Constitution is not only what started this great nation," Scalia told the students, "but is what continues to make us one great nation. There is no other nation that can identify with those principles." On Monday, Scalia apologized to the reporters involved – but reiterated that he feels he has a "First Amendment right" to limit media coverage and forbid recording of his speeches.