SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 71
August 26, 2003

CLASSIFIED INFO COVER SHEETS WITHHELD, RELEASED

The arbitrary quality of much government secrecy is underscored by the fact that what one agency will withhold from the public, another agency will sometimes release.

That is what happened to Freedom of Information Act (FOIA) requester Robert G. Todd when he asked two different agencies for a copy of the generic cover sheets that are used to identify classified documents.

These unclassified color-coded cover sheets (Standard Forms 703, 704 and 705), which are produced by the General Services Administration, are often attached to official documents to tag them as classified. Yellow [correction: Blue] sheets are used for Confidential documents, red for Secret, and orange for Top Secret.

In response to a request from Mr. Todd, the Department of Defense (DoD) last month refused to provide a copy of these cover sheets, citing FOIA exemption (b)(2)(high), which shields information that could enable "circumvention" of agency rules, policies or statutes.

Release of the denied cover sheets would "imped[e] the DoD in the conduct of its mission," asserted H.J. McIntyre of the DoD FOIA Directorate in a July 29 denial letter.

In contrast, the General Services Administration released the cover sheets "with no qualms whatsoever," said Mr. Todd. And yet "The Republic still stands," he noted.

Copies of the cover sheets for classified information are available here (as MS Word documents):

THE ELASTIC "HIGH 2" FOIA EXEMPTION

Perhaps the single most significant change in Freedom of Information Act policy in recent years has been the expanding scope of the so-called "high 2" FOIA exemption, which is increasingly serving as a catch-all pretext for withholding almost anything the government does not want to release.

The FOIA includes nine exemptions. Exemption 2 applies somewhat opaquely to records that are "related solely to the internal personnel rules and practices of an agency."

Over time, this exemption has been elaborated to apply to internal agency matters of little or no public interest ("low 2") and, more consequentially, to internal agency records, such as law enforcement manuals, that could enable recipients to circumvent laws or agency practices (designated "high 2").

Under the October 2001 Ashcroft FOIA policy, the government has increasingly relied upon the "high 2" exemption to withhold all manner of unclassified homeland security and critical infrastructure information, sometimes on questionable grounds.

"Agencies should be sure to avail themselves of the full measure of Exemption 2's protection for their critical infrastructure information as they continue to gather more of it, and assess its heightened sensitivity, in the wake of the September 11 terrorist attacks," the Justice Department has urged.

Agencies have evidently taken this message to heart and have used the high 2 exemption to withhold such things as the classified information cover sheets noted above and the unclassified report on lessons learned from the 2001 anthrax attacks discussed in the previous issue of Secrecy News.

"Whether there is any public interest in disclosure is legally irrelevant under this 'anti-circumvention' aspect of Exemption 2," according to the Justice Department. See:

GAO REPORT ON VP'S ENERGY TASK FORCE

The General Accounting Office (GAO) issued its final report on the Vice President's Energy Task Force with a parting shot at the Bush Administration's secrecy.

"The Office of the Vice President's unwillingness to provide the [Task Force] records or other related information precluded GAO from fully achieving its objectives and substantially limited GAO's ability to comprehensively analyze the [Task Force] process," the report stated.

White House refusal to disclose information concerning meetings of the Task Force was one of the early, pre-9/11 harbingers of the Bush Administration's restrictive secrecy policies. It clearly indicated the Administration's preference for taking the public's business behind closed doors, to the growing impoverishment of the deliberative process.

A copy of the GAO report, entitled "Energy Task Force: Process Used to Develop the National Energy Policy," is posted here:

REP. OTTER PRAISES OPPOSITION TO PATRIOT ACT

"Spontaneous grassroots movements that begin in communities and grow into national movements can, and often actually do, produce meaningful change in government."

It may sound like Saul Alinsky, but it's actually Rep. C.L. "Butch" Otter, Republican of Idaho, applauding efforts to rise up "against the USA Patriot Act and its efforts to undermine or eliminate essential liberties."

Rep. Otter led the successful move in the House last month to repeal the so-called "sneak and peek" provisions of the USA Patriot Act which permit delayed notification of searches by law enforcement under some circumstances.

"The resistance to intrusive government policies is growing and reminds us that Americans remain firmly committed to liberty and democracy," Rep. Otter said in an August 13 statement. See:

RUSSIA: NEW STATUTE ON INTELLIGENCE

By presidential edict earlier this month, Russia adopted a new Statute on the Federal Security Service (FSB) of the Russian Federation. It outlines the organization, objectives and functions of this Russian intelligence agency. See the text of the new statute, translated by the Foreign Broadcast Information Service, here:

CIA HISTORICAL REVIEW PANEL STATEMENT

The CIA Historical Review Panel (HRP), a group of historians and political scientists convened by the Director of Central Intelligence to provide advice on declassification policy, released its latest statement of activities this week.

The brief statement provides a skeletal account of the topics addressed by the Panel that is interesting, but finally disappointing.

The HRP's fatal flaw is that it has acquiesced in the Agency position that CIA declassification policy is too sensitive to be fully aired in public. As a result, the Panel has itself become another obstacle to the correction of obsolete secrecy policies.

"Because the HRP's advice to the DCI must be completely frank and candid, we are not reporting Panel recommendations," the Panel stated, as if its members were incapable of being frank and candid about their policy positions except on a confidential basis.

If the Panel members' frank and candid recommendations had led to any significant changes in declassification policy over the last several years, their concession to Agency secrecy might be justified in practice if not in principle. But there is little evidence of that. Instead, they have merely deprived themselves of the leverage and insight that public participation could offer.

See a copy of the latest HRP statement here:

CORRECTION RE: KATHRYN DYER

Secrecy News reported incorrectly that Kathryn Dyer retired from the CIA (SN, 8/13/03). Although she recently left her longstanding position as Information and Privacy Coordinator, she is still employed by the CIA in another capacity.

SAM COHEN'S "SHAME" ONLINE

Nuclear weaponeer Sam Cohen's memoir "Shame: Confessions of the Father of the Neutron Bomb" is "not a good book in any conventional sense," Secrecy News observed a while back (SN, 01/16/01).

"It is long, whiny, profane, and self-indulgent. It seems to have escaped editing altogether. Part reminiscence, part crank manifesto, it is a mess. But it is an honest and compelling mess that students of nuclear history will not want to miss."

It is now available online here:

SCIENCE AS DEMOCRATIZER

"The more scientifically literate people become, the more they will expect, even demand to participate in the political process, and the more effective they will be at it."

That is the nub of an argument advanced by Robert Lawrence Kuhn, with appropriate caveats, nuances and counterexamples, in an essay in American Scientist magazine.

See his "Science as Democratizer," September-October 2003, here:

CLASSIFICATION HUMOR

National security classification policy is not known as a source of many laughs, for at least a couple of reasons. When it is legitimate, protecting classified information from disclosure can be as serious as life and death. Besides, legitimate or not, the discipline of classification has a soul-deadening quality that discourages independent thought, let alone whimsy.

But one anonymous critic whose whimsy could not be completely suppressed produced this mock set of classified information cover sheets, modeled on the official versions discussed above. See:

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

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