SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2002, Issue No. 50
June 11, 2002

JUDICIAL REVIEW OF ACCESS DETERMINATIONS UPHELD

A federal court yesterday emphatically rejected a Bush Administration claim that the executive branch has the exclusive right to determine who may have access to classified information and that such determinations are not subject to judicial review.

"The implications of the arguments put forth by the government in this case are stunning," wrote Judge Emmet G. Sullivan, in rebuffing the Administration's position.

"The government argues here that any and all conflicts between national security interests and individual constitutional rights can not be resolved by the ... courts because the Constitution commits the protection of national security to the Executive Branch...."

But that "is not and has never been the law," the Judge found.

"If this were the law, the Pentagon Papers case... was wrongly decided [and] the Freedom of Information Act... would be unconstitutional," Judge Sullivan wrote.

The question of judicial authority arose in the course of a dispute over the pre-publication review of a manuscript on the Chinese nuclear weapons program written by former Los Alamos official Danny B. Stillman, who has sought official approval to publish his manuscript for years now. In the latest twist, the government opposed granting access to classified portions of the manuscript to Stillman's attorney, Mark S. Zaid.

"This Court will not allow the government to cloak its violations of plaintiff's First Amendment rights in a blanket of national security," the Judge wrote.

Judge Sullivan ordered the government to proceed expeditiously to conduct the background investigation needed to approve Mr. Zaid's clearance for access to contested portions of the Stillman manuscript.

See Judge Sullivan's 106 page memorandum opinion here:

See also "Judge Upholds Classified Info Review" by Leslie Miller of the Associated Press:

A CRITICAL HISTORY OF THE FBI

"FBI officials intensively investigated the Federation of American Scientists" in the late 1940s and 1950s, recalls Athan Theoharis in "Chasing Spies," his new critical history of the FBI.

"FBI agents carefully monitored the public activities of FAS leaders and their various efforts to influence public policy, having been ordered to determine their 'political orientation,' possible links to Communists or suspected Communists, and 'agitation and pressure activities aimed at influencing the dissemination of technical and other information' [concerning nuclear policy]," Theoharis notes.

As the standards governing FBI investigations are being modified, the Bureau's record is of more than historical interest. While the FBI should not be unduly burdened by its past excesses as it works today to combat terrorist threats to the nation, neither should those excesses be altogether forgotten.

Chapter One of "Chasing Spies: How the FBI Failed in Counterintelligence But Promoted the Politics of McCarthyism in the Cold War Years" by Athan Theoharis is now posted here:

See also:

RESEARCHING NATIONAL SECURITY RECORDS

Navigating through the nation's archives and records repositories in search of particular documents can be a daunting and discouraging task.

Over the past decade, James E. David of the National Air and Space Museum has been to the bowels of U.S. archival system and back, and now he has described what he has learned.

His new reference book, entitled "Conducting Post-World War II National Security Research in Executive Branch Records: A Comprehensive Guide," begins with a brief introduction to records retention and declassification policy. It then provides a detailed 200 page itemization of what kinds of national security records are located where, along with notations on their status and availability.

Though overpriced at $85, the book has the potential to save serious researchers considerable time in finding what they are looking for, and to alert others to the existence of records they might never have known about. See:

SECRECY IN THE NEWS

The Pentagon's Missile Defense Agency has adopted a new classification policy that will significantly reduce the availability of public information about the controversial missile defense test program, as reported by Defense Daily and the Los Angeles Times. See "Why the Secrecy Shield?" by Philip E. Coyle III in the June 11 Washington Post:

The impact of new security regulations on the conduct of scientific research is discussed in "Staying One Step Ahead of Government Censors" by Peg Brickley in the June 10 issue of The Scientist here (free registration required):

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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