SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 51
June 18, 2003

DETAINEE SECRECY UPHELD

In a victory for the Bush Administration and a serious blow to the Freedom of Information Act, a federal appeals court panel ruled that no information concerning hundreds of persons detained in the aftermath of the September 11 attacks need be disclosed under the FOIA.

"America faces an enemy just as real as its former Cold War foes, with capabilities beyond the capacity of the judiciary to explore," wrote Judge David B. Sentelle, explaining the court's refusal to "second guess" the executive branch's refusal to disclose such information.

The public interest plaintiffs, led by the Center for National Security Studies, said that the court failed to properly consider the competing interests in disclosure or the kinds of abuses facilitated by secrecy and recently documented by the Justice Department Inspector General.

While some of the requested information may be properly exempt from disclosure, wrote Judge David S. Tatel in a fierce dissent, it does not automatically follow that all of it is exempt.

"While the government's reasons for withholding some of the information may well be legitimate, the court's uncritical deference to the government's vague, poorly explained arguments for withholding broad categories of information about the detainees... eviscerates both FOIA itself and the principles of openness in government that FOIA embodies," he wrote.

This is not merely a rhetorical expression of frustration. The new court ruling actually damages the FOIA by expanding the scope of judicial deference, and thereby curtailing judicial review of executive branch actions.

By mandating judicial review of contested FOIA decisions, Congress anticipated that some government decisions to withhold information would be erroneous. Judicial review was to serve as an error-correcting mechanism. The doctrine of judicial deference, however, embodies a refusal by the judicial branch to undertake the crucial task of error correction.

In specific matters of extraordinary sensitivity or complexity such deference may be unavoidable. Even then it comes at the risk of ratifying and encouraging executive branch excesses. In this case, Judge Tatel argued, the majority extended judicial deference far beyond what the facts warranted.

A copy of the June 17 appeals court panel decision in Center for National Security Studies, et al, v. Department of Justice is posted here:

DISPUTE OVER STATE SECRECY RULING UNFOLDS

The possibility of error correction is at the heart of a dramatic challenge to United States v. Reynolds, an influential 1953 Supreme Court ruling that underlies the "state secrets" privilege.

Based on recently declassified documents, it can now be shown that the 50 year old ruling was based on fraudulent testimony from Air Force officials, according to surviving participants in the original proceeding.

They petitioned the Court earlier this year for a "writ of error" (Secrecy News, March 4). See:

Last month, the government responded to the petition arguing that there was no fraud and that, in any event, the Court lacked jurisdiction to address the matter. See the Solicitor General's May 30 response here:

The petitioners replied vigorously on June 12:

LEVIN CHALLENGES CIA CLASSIFICATION

Citing a discrepancy between the CIA's public statements and its classified briefings, Senator Carl Levin (D-MI) called on the Agency to declassify information about what it told United Nations weapons inspectors regarding the number of suspected Iraqi weapons locations.

DCI George Tenet had resisted such declassification citing "secrecy agreements" with the UN. Taking this claim at face value, Senator Levin wrote to chief UN weapons inspector Hans Blix to inquire whether Blix had any objection to release of the requested information. In a June 11 letter released by Levin this week, Blix said "we would have no objection if it were made public."

DCI Tenet "doesn't have any excuse now, it seems to me," said Senator Levin at a June 16 press briefing. "He no longer can hide behind Blix as saying, 'Well, we have this secret relationship with Blix which would be in some way undermined if I released that information.' He can't use that anymore because Dr. Blix says, 'Go ahead, release it'."

See this June 16 press release with attached correspondence:

"It undermines the credibility of the director of intelligence to be making public statements relative to intelligence which are not factually accurate," Senator Levin said.

HOUSE COMPENDIUM OF INTELLIGENCE LAWS

The House Intelligence Committee has updated its periodic "Compilation of Intelligence Laws and Related Laws and Executive Orders of Interest to the National Intelligence Community."

It is a very handy compendium of major and minor intelligence-related statutes, current as of March 25, 2003 and published for the first time in electronic form. A copy is posted here (2.6 MB PDF file):

IRAQI WMD INTEL DOCS AVAILABLE TO CONGRESS

House Intelligence Committee chairman Rep. Porter Goss invited members of the House of Representatives who have signed non-disclosure oaths to review certain classified intelligence documents concerning Iraq's weapons of mass destruction program and Iraqi ties to terrorist groups. See this June 17 floor statement:

One such document was uncovered by U.S. News and World Report last week. It is a November 2002 Defense Intelligence Agency assessment reporting that there was "no reliable information" that Iraq was producing or stockpiling chemical weapons. The assessment echoes an earlier DIA report partially declassified this month.

See "Second intelligence report: 'No Reliable Information' Iraqis Stockpiling Chemical Weapons," by David E. Kaplan and Mark Mazzetti, U.S. News, June 13:

See also "Word That U.S. Doubted Iraq Would Use Gas," by James Risen, New York Times, June 18:

LEARY NAMED ISCAP CHAIR

President Bush named National Security Council staff member William H. Leary to be the new chair of the Interagency Security Classification Appeals Panel (ISCAP).

ISCAP is the executive branch body that reviews appeals from the public of mandatory declassification review requests that have been denied.

See this June 17 White House press statement:

ISCAP has an astonishing track record of overturning agency refusals to declassify and releasing requested documents in whole or in part in about 80% of the cases it has considered. This activity both confirms that overclassification is a continuing problem, and helps to remedy that problem. For more on ISCAP see:

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

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