SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 53
June 24, 2003

SUPREME COURT TURNS AWAY REYNOLDS CHALLENGE

The Supreme Court yesterday rejected a challenge to its landmark 1953 ruling in U.S. v. Reynolds in which the plaintiffs were denied access to an Air Force accident report on grounds that it contained "state secrets."

Earlier this year, the surviving plaintiffs and their heirs petitioned the Court to revisit the matter, arguing that they and the Court itself had been defrauded by the government. Recently declassified records, they said, revealed that the government's original claim of state secrecy was false. The Court had relied on the sworn statements of Air Force officials, but the officials had lied, the petitioners argued.

The case raised the most profound questions of government integrity, the proper boundaries of judicial deference to the executive branch, and the judicial system's ability to correct its own errors.

But it was a missed opportunity. The petitioners' motion for leave to merely file their petition (In re Patricia J. Herring et al) was denied by the Supreme Court without comment on June 23.

Meanwhile, U.S. v. Reynolds lives on, having been cited as precedent hundreds of times in recent decades, up to and including this year.

Legally, its status is unaffected. But for some attentive members of the public, the fifty year old decision now carries an asterisk, a taint of suspected fraud.

The petitioners' story is told in a remarkable three-part series in the South Jersey Courier-Post entitled "State Secrets" by Matt Katz, published June 22-24:

MARBURGER ON SCIENCE AND SECURITY

In a speech last week, White House science advisor Dr. John Marburger reiterated yet again that the Bush Administration had no intention of imposing security controls on unclassified scientific research.

Though he did not mention the term, his remarks appeared to rule out the application of the controversial "sensitive but unclassified" control marking in the domain of science. At the same time, he suggested that this message had not yet reached all quarters.

"In my public and private communications with the science and higher education communities, I have urged that incidents thought to be in violation of that policy be communicated to my office. In some cases during the past year, we have contacted agencies with suggestions," he said without elaboration.

Dr. Marburger spoke on June 19 at the Roundtable on Scientific Communication and National Security convened by the National Academies of Science. See the text of his remarks here:

BOOK: THE WAR ON OUR FREEDOMS

There is no denying the post-September 11 upheaval in civil liberties, which encompasses a whole constellation of issues from immigration rights and freedom of expression to judicial process and official secrecy.

Yet given the scope of the unfolding changes, "press coverage and public attention have been muted," according to Richard C. Leone of The Century Foundation. In order "to bolster debate," the Foundation has published a new collection of essays entitled "The War on Our Freedoms: Civil Liberties in an Age of Terrorism."

Among numerous interesting pieces written from a civil libertarian perspective is one on government secrecy by former White House chief of staff John Podesta. For more information see:

INSPECTOR GENERAL REPORT ON NIMA WITHDRAWN

A recent Department of Defense Inspector General (DoDIG) report on contracting practices at the National Imagery and Mapping Agency has been removed from the DoDIG web site at NIMA's request.

"NIMA discovered the report contained organizational numbers and functions that are exempt from disclosure to the public," according to a NIMA statement.

See "DOD IG Pulls Report Off Web Site" by Dan Caterinicchia, Federal Computer Week, June 23:

A copy of the withdrawn IG report, which found notable defects in NIMA contracting, is nevertheless available here:

BILLS INTRODUCED ON FOIA, DECLASSIFICATION

The "Restoration of Freedom of Information Act of 2003" was introduced last week by Reps. Frank and Udall to narrow, but not eliminate, the broad FOIA exemption for critical infrastructure information that was included in last year's Homeland Security Act. The new bill, HR 2526, corresponds to a similar Senate measure, S. 609, introduced in March by Senators Leahy and Levin. See HR 2526 here:

The "Human Rights Information Act" was reintroduced by Rep. Tom Lantos and numerous co-sponsors to expedite the declassification of records related to human rights violations abroad. The bill would assign responsibility for overseeing and implementing the declassification process to the Interagency Security Classification Appeals Panel. See the text of the bill, introduced June 19, here:

1989 NASA MEMO ON FOIA EVASION RESURFACES

"A lawyer who devised ways for NASA to avoid requests under the federal Freedom of Information Act is again working with the agency, this time as legal counsel to the Columbia Accident Investigation Board," reported Karen Masterson in the Houston Chronicle.

See "Controversial NASA attorney advising Columbia commission," June 20:

The reference is to an unfortunate 1989 internal memorandum which provided tips on evading the requirements of the FOIA and described ways to "render any information released significantly less meaningful."

The memo originally surfaced in 1992 in the course of an investigation by then-Rep. Howard Wolpe into the ill-fated SP-100 space nuclear reactor program. Upon Wolpe's protest, the memo was promptly disavowed by NASA.

The author was evidently a novice at stonewalling the public. If he had followed his own advice, he would never have put this information in writing.

The text of the 1989 NASA memo is available here:

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

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