SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 15
February 18, 2003

SCIENCE JOURNALS WILL SCREEN PAPERS FOR HAZARDS

In a landmark statement, editors of numerous leading scientific journals declared last weekend that they will screen scientific papers for data that might pose a security threat, and that in cases where the risk of publication outweighs the benefits, the papers would be withheld or modified.

The Bush Administration had quietly pressured scientific groups to visibly adopt a policy of self-regulation, or face the possibility that Congress or the Administration would impose restrictions on scientific publication.

"We recognize that the prospect of bioterrorism has raised legitimate concerns about the potential abuse of published information," according to the new statement, "but also recognize that research in the very same fields will be critical to society in meeting the challenges of defense."

"We recognize that on occasion an editor may conclude that the potential harm of publication outweighs the potential scientific benefits. Under such circumstances, the paper should be modified, or not be published," the statement said.

Significantly, this voluntary approach would vest responsibility in individual journal editors who would have to exercise their own judgment. It would not concede to government officials any authority to suppress or censor scientific research.

Nor does the statement specify what kind of information might be properly withheld, noting that "we cannot now capture it with lists or definitions."

The statement itself is an act of good citizenship, insofar as it represents scientists and journal editors taking responsibility for the consequences of their work. It is also tactically wise, to the extent that it serves to forestall more extreme official measures.

But otherwise, its significance is rather limited. For one thing, there are likely to be few papers which pose risks that so obviously outweigh the benefits as to render them clearly unfit for publication. Furthermore, there are today innumerable opportunities for global dissemination of scientific research other than formal publication in prestigious scientific journals. The big journals' policy of self-regulation can send a signal of sensitivity and restraint to the scientific community and the general public, but it is unlikely to be the last word on this delicate subject.

The February 15 "Statement on Scientific Publication and Security" was presented at the annual meeting of the American Association for the Advancement of Science. The text, to be published this week in Science, Nature, and the Proceedings of the National Academy of Sciences, may be found here:

CONGRESS LIMITS FOIA ACCESS TO GUN DATA

Members of Congress stealthily inserted a provision in last week's mammoth omnibus appropriations bill to block Freedom of Information Act (FOIA) requests for certain information regarding gun sellers and buyers that is archived in Bureau of Alcohol, Tobacco and Firearms (ATF) databases. The move could sharply curtail investigative reporting and other public scrutiny of gun sales.

Federal courts have ruled that such data is subject to disclosure under the FOIA. Most recently, a federal appeals court ordered that the ATF was obliged to comply with a FOIA request from the City of Chicago for the release of information from its gun databases. The Bush Administration appealed the decision to the Supreme Court, which is scheduled to hear the case on March 4.

The new legislative provision, promoted by gun industry lobbyists, seems designed to leapfrog the pending judicial process and overturn the court rulings that granted access to the gun data.

But if so, the provision may not achieve its intended goal. Instead, the existing disclosure policy may actually be reinforced by a clause that was added to the measure in conference, which states that "records may continue to be disclosed to the extent and in the manner that records... Have been disclosed under [FOIA] prior to the date of the enactment of this Act." At a minimum, this clumsily drafted provision is likely to generate confusion as to its practical legal meaning.

The text of the new provision, section 644 of H.J.Res. 2, is posted here:

It was first spotted by the Brady Campaign, a handgun control advocacy group, which issued a February 13 press release, "Special Interest Rider Makes Crime Gun Data Secret," here:

It was reported in "Chicago gun plan hurt in House bill" by Lynn Sweet, Chicago Sun-Times, February 14, here:

Information on the ATF FOIA case that will be heard before the Supreme Court next month may be found here:

RE-READING RICHARD SHELBY

When the findings and recommendations of last year's congressional joint inquiry into September 11 were published, Sen. Richard Shelby (R-AL) independently issued a lengthy statement of his own "additional views" on the subject.

The bulky document was largely overlooked at the time, except for its potshots at CIA Director Tenet, and by now it has nearly been forgotten. But Shelby's statement is littered with telling observations and original insights, and no one with an interest in intelligence policy should miss it.

Noting that "The CIA's Directorate of Operations usually refuses even to let CIA analysts see its own operational cable traffic," Sen. Shelby establishes that dysfunctional information policies, including inappropriate controls on information, are at the root of much of what ails the U.S. intelligence bureaucracy.

"The fundamental intellectual assumptions that have guided our Intelligence Community's approach to managing national security information for half a century may be in some respects crucially flawed," he writes.

Along the way, he challenges some longstanding practices that are so deeply-rooted that no one normally thinks to question them, such as the application of the "need to know" standard for sharing information.

"It may not be true," Sen. Shelby proposes radically, "that information-holders -- the traditional arbiters of who can see 'their' data -- are the entities best placed to determine whether outsiders have any 'need to know' data in their possession. Analysts who seek access to information, it turns out, may well be the participants best equipped to determine what their particular expertise and contextual understanding can bring to the analysis of certain types of data."

But information sharing is not exactly the solution either, "inasmuch as 'sharing' connotes ownership by the party that decides to share it, an idea that is antithetical to truly empowering analysts to connect all the right 'dots'."

As for intelligence reform, "hard-wiring the IC in order to fight terrorists... is precisely the wrong answer, because such an approach would surely leave us unprepared for the next major threat, whatever it turns out to be." Rather, "we need an Intelligence Community agile enough to evolve as threats evolve, on a continuing basis."

The new regime also poses challenges for intelligence oversight, he notes. "Since the Department of Justice has taken the position that the intelligence oversight committees of Congress should not be permitted to see any grand jury information, this means that there is no oversight of what use is made of grand jury material passed to the Intelligence Community.... The 108th Congress would do well to consider the civil liberties implications of passing grand jury information to the Intelligence Community without effective oversight."

There is naturally much to argue over, and disagree with, in the 84 page report. But on balance, Sen. Shelby's report is among the most thoughtful and the most rigorously argued congressional writing on intelligence in many years.

Sen. Shelby's December 10, 2002, report on "September 11 and the Imperative of Reform in the U.S. Intelligence Community" may be found here:

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

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