SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 108
December 15, 2003

DOD WITHHOLDS STUDY ON ANTHRAX LESSONS LEARNED

In the latest sign of the expanding scope of official secrecy, the Department of Defense has formally refused to release a report on lessons learned from the 2001 anthrax attacks, in which anthrax spores were sent through the mail to members of Congress and the media, even though the report is unclassified.

What makes the move somewhat unusual is that the Pentagon did not invoke national security as the reason for withholding the document.

Instead, in denying a Freedom of Information Act request from the Federation of American Scientists for the anthrax study, the Department cited FOIA exemption (b)(2) (High) which protects information that, "if disclosed, might be used to circumvent an agency rule or regulation." No particular agency rule or regulation was identified.

Furthermore, "this document falls under the guidance of the US Attorney General memorandum, dated October 12, 2001, that restricts the public distribution of information related to homeland security and protection of critical infrastructure," according to the December 12 denial letter from the Defense Threat Reduction Agency (DTRA). See:

But exemption 2 is completely inapplicable to this document, FAS argued in a letter of appeal. Nor is the Attorney General authorized to unilaterally impose new "restrictions on public distribution of information" that go beyond the nine exemptions from disclosure that were provided in the FOIA. See:

The Department of Defense seems to have so clearly exceeded its authority in this case that if the appeal is denied, the stage may be set for corrective judicial action. A successful legal challenge in this case could help to limit the growing practice of using FOIA exemption 2 to withhold information on unclassified homeland security and critical infrastructure matters.

"I'm amazed that DoD is giving this case to you on a silver platter," said one former DTRA official who said he found the agency's argument for withholding the document untenable.

"There is no 'rule or regulation' DoD can cite that has any relevance to this whatsoever -- let alone one that they can accuse this report of subverting."

"For their sake, I can only hope that [DTRA] realizes that denying your appeal is going to have the effect, when you win in court, of striking down DoD's entire information management policy," the former official told Secrecy News, anticipating one possible sequence of events. (See also SN, 8/19/03).

BUSH SIGNS 2004 INTEL BILL INTO LAW

President Bush signed into law the 2004 intelligence authorization bill on December 13, while signaling a continuing posture of secrecy towards congressional overseers.

In a signing statement, he warned that he might not comply with several legislative provisions on intelligence accountability and reporting because, he said, they intruded on executive authority.

"Many provisions of the Act, including section 106 and subtitle D of title III of the Act, seek to require the executive branch o furnish information to the Congress on various subjects. The executive branch shall construe the provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."

See the December 13 signing statement here:

SECURITY CLEARANCE POLICY IN DISARRAY

After a decade of concerted effort to streamline and rationalize the procedures for granting security clearances, there are still major defects in security clearance policy, particularly when it comes to industrial contractors doing classified work for the government, according to a new report.

First and foremost, the system is plagued by delays in handling of clearance applications, which sometimes take several years to be processed, according to the 2002 report of the National Industrial Security Program (NISP).

"According to those interviewed, the delays cost industry countless millions of dollars per year," the NISP report stated. "Often individuals left the company before they actually worked in the position they were hired for, due to delays in the clearance process."

Another major problem concerns the erosion in "reciprocity," i.e. the growing unwillingness of one agency to accept the clearances issued by another agency without conducting a separate, independent investigation.

"Based upon the responses given, it is difficult to recognize that the entire executive branch is supposed to be operating under uniform investigative standards and adjudicative guidelines for security clearances," the report said.

"Overall, this report reveals that items identified as progress points in our January 1999 NISP report are no longer progressing," it said.

A copy of the 2002 NISP report, published last month by the Information Security Oversight Office, is available here (1.7 MB PDF file):

ACCURACY OF THE FISA APPLICATION PROCESS

The integrity of the procedures for authorizing clandestine search and surveillance under the Foreign Intelligence Surveillance Act was called into question in recent years after several instances in which inaccurate information was presented to a court in applications for such surveillance.

In response, the Federal Bureau of Investigation two years ago adopted new procedures to "ensure the accuracy" of its applications.

A copy of the so-called Woods Procedures, named after their author, Michael J. Woods of the FBI Office of General Counsel, and declassified last year, is available here:

In reply to questions for Senator Patrick J. Leahy (D-VT), FBI Director Robert Mueller explained the background and context of the procedures.

Director Mueller's responses, transmitted August 29, 2003, were sent to the Senate Judiciary Committee and are excerpted here:

FBI reliance on the FISA process is increasing as previous, long-held distinctions between law enforcement and intelligence are swept away.

See "FBI Applies New Rules to Surveillance" by Dan Eggen, Washington Post, December 13:

US NEWS ON BUSH ADMINISTRATION SECRECY

The extraordinary reach of official secrecy in the Bush Administration is explored in a lengthy investigation published this week in U.S. News and World Report.

The story goes well beyond the familiar excesses to include many lesser known but no less troublesome restrictions on public access to information that have become a hallmark of the current Administration.

See "Keeping Secrets" by Christopher H. Schmitt and Edward T. Pound, U.S. News and World Report, December 22:

CRS ON POST-SADDAM IRAQ

The daunting complexities of Iraq's internal political environment after the fall of Saddam Hussein are explored in a new report from the Congressional Research Service (completed before the capture of Hussein on December 13).

See "Iraq: U.S. Regime Change Efforts and Post-Saddam Governance" by Kenneth Katzman, Congressional Research Service, updated November 18:

Rep. Bob Ney (R-OH) does not believe the American public should have routine access to CRS reports like this one.

Rep. Ney, chair of the House Committee on House Administration, attempted to explain his position in "Ney Draws Line at Public Access to Research," by Paul M. Krawzak, Copley News Service, December 11:

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

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