SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 89
October 16, 2003

DOD RESTORES ONLINE ACCESS TO DIRECTIVES

The Department of Defense today restored public access to a website containing hundreds of DoD directives that it had removed from public reach just over a week ago.

The episode is a microcosm of countless other disputes over access to government information. Last week, the Pentagon began by unilaterally blocking public users from the directive web page. The move was immediately exposed and criticized (SN, 10/08/03). It was challenged and implicitly ridiculed by TheMemoryHole.org, which posted a complete replica of the withdrawn website. The removal triggered a request and faced impending legal challenges under the Freedom of Information Act. And it drew media attention, including a brief Associated Press story yesterday by Jim Krane.

To its credit, the Pentagon got the message. The site is again available here:

An optimist would be entitled to conclude that it is still possible, even under current conditions, to effect change in offical secrecy policy, at least in a modest way.

GAO (BUT NOT DOD) ON ANTHRAX LESSONS LEARNED

The General Accounting Office yesterday released a report entitled "Bioterrorism: Public Health Response to Anthrax Incidents of 2001."

The GAO identified the lessons learned by state and local public health officials regarding both strengths and weaknesses in preparedness for an anthrax-related emergency. It described the steps that have been take to improve emergency response, and those that remain to be accomplished. See:

The new GAO report is doubly noteworthy because it addresses precisely the same set of issues as another report prepared by the Center for Strategic and International Studies under contract to the Defense Threat Reduction Agency.

But that unclassified report, "Lessons from the Anthrax Attacks: Implications for U.S. Bioterrorism Preparedness," is still being withheld by the Pentagon from public disclosure. An FAS Freedom of Information Act request to compel release of the document is pending (SN, 8/19/03).

THE COLUMBIA ACCIDENT INVESTIGATION'S "BIGGEST MISTAKE"

The "biggest mistake" made by the Columbia Accident Investigation Board that examined the February 2003 space shuttle disaster was that it circumvented the normal open meeting requirements, thereby "diminishing" its own work.

That is the conclusion of an otherwise sympathetic assessment published in the November 2003 Atlantic Monthly entitled "Columbia's Last Flight" by William Langewiesche.

"Serious critics cried foul... and pointed out correctly that [Board chair Admiral Hal] Gehman was using loopholes to escape sunshine laws that otherwise would have applied," Langewiesche writes.

In particular, the Orlando Sentinel (to whom Langewiesche wrongly condescends elsewhere in the article) reported on May 11 that by hiring the Board members as NASA employees, the Board was able to escape the requirements of the Federal Advisory Committee Act.

"Gehman believed that treating the [witness] testimony as privileged was necessary to encourage witnesses to testify, and to get to the bottom of the story," Langewiesche explains.

"[B]ut the long-term effect of the investigation will be diminished as a result (for instance, by lack of access to the raw material by outside analysts), and there was widespread consensus among the experienced investigators actually conducting the interviews that the promise of privacy was having little effect on what people were willing to say," he continued.

"These were not criminals they were talking to, or careful lawyers. For the most part they were sincere engineering types who were concerned about what had gone wrong, and would have been willing even without privacy to speak their minds. The truth, in other words, would have come out even in the brightest of sunshine."

The interesting article by Langewiesche is not available on The Atlantic website (www.theatlantic.com). But see "Shuttle Accident Board Erodes Open Meeting Law," Secrecy News, May 12, 2003:

CLASSIFIED TECHNOLOGY FOR LAW ENFORCEMENT

Classified technologies could be employed by law enforcement to decipher encrypted communications or to acquire other forms of evidence in criminal investigations, but deciding to use such technologies requires a careful balancing of competing interests, a Justice Department memorandum explained last year.

Among other things, officials must weigh the nature of the evidence to be obtained, the risk of disclosure of the classified technology (e.g., in the course of prosecution), the impact of any such disclosure on national security, and so forth.

The issue was addressed in a four page memo from then-Deputy Attorney General Larry D. Thompson dated January 31, 2002. Senator Patrick Leahy (D-VT) requested a copy of the memo last year. It was finally provided to the Senate Judiciary Committee in April of this year and published in a Committee hearing volume last week.

See "Procedures for the Use of Classified Investigative Technologies in Criminal Cases" here:

SECRECY VERSUS INTELLIGENCE

"There's a 'total meltdown' in America's intelligence services -- and the Bush administration's penchant for secrecy is one of the major reasons why, current and former top U.S. spooks charged Tuesday," writes Noah Shachtman in Wired News.

The report reflects a growing realization among the most alert members of the government that excessive classification is doing a disservice to U.S. intelligence and to U.S. policy generally by impeding the flow of information to those who need it.

See "Spies Attack White House Secrecy" by Noah Shachtman, Wired News, October 16:

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

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