SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 66
July 19, 2005

"SENSITIVE" INFO IN DISPUTE IN US-MEXICO BORDER COMMISSION

An intense and dramatic dispute over the performance of a Texas-based U.S. government commission illustrates how an agency may seek to evade controversy by increasing secrecy, as well as the ability of highly motivated critics to penetrate such secrecy and to broadcast their concerns using the internet.

Battered by critics from within and without, the head of the little-known International Boundary and Water Commission (IBWC) in El Paso, Texas issued a directive this month calling for improved protection of "sensitive" agency information.

The July 8 directive, which itself was not supposed to be disclosed, was promptly published on a web page devoted to criticism of the Commission.

"Established in 1889, the International Boundary and Water Commission (IBWC) has responsibility for applying the boundary and water treaties between the United States and Mexico and settling differences that may arise out of these treaties," according to the Commission web site.

But "In the short time that the IBWC has been under the control of Commissioner [Arturo] Duran, it has been decimated of talent and institutional knowledge and memory, and transformed into a nearly dysfunctional organization wracked by fear and abuse," according to the anonymous critics' web site.

A U.S. State Department Inspector General report earlier this year confirmed that "management actions have undermined the morale of the agency, led to an alarming departure of key personnel, and raised fundamental questions about the lack of U.S. government oversight of the IBWC."

In a move perceived by the critics as an attempt to stifle mounting public criticism, the IBWC issued an agency-wide directive this month on protecting "sensitive" information.

Key excerpts from the directive, acerbically annotated by the agency critics, may be found here:

The full directive (without critical commentary) is available here:

The web site of the International Boundary and Water Commission is here:

And the anonymous critics' page is here:

UNAUTHORIZED DISCLOSURES AND THE ROVE MATTER

The unfolding controversy over the role of White House adviser Karl Rove in disclosing the identity of CIA officer Valerie Plame has inspired new attention to the details of official policy on disclosures of classified information.

Rep. Henry Waxman (D-CA) noted astutely that under the terms of the standard classified information nondisclosure agreement, officials are not supposed to confirm the accuracy of classified information even when it is obtained from a public source such as a journalist.

Rep. Waxman reiterated this point yesterday in a letter to President Bush:

Meanwhile, the subjective character of classification policy was highlighted as Democrats turned ostentatiously hawkish on leaks while Republicans all but dismissed the public identification of a covered CIA officer as insignificant.

See "Political Parties Reverse Roles in Debate Over CIA Leak" by Josh Gerstein, New York Sun, July 18:

A Knight-Ridder news story noted that under the prevailing executive order, "appropriate and prompt corrective" administrative action is supposed to be taken against any U.S. government official who "knowingly, willfully or negligently" discloses classified information. But "a White House spokesman declined to respond to questions about the executive order."

See "Bush says he'll fire any aide who committed a crime in leak case" by Jonathan S. Landay, Knight-Ridder Newspapers, July 18:

COURT UPHOLDS PERMANENT PDB SECRECY

A federal judge last week accepted the Central Intelligence Agency's contention that the President's Daily Brief (PDB) is itself an "intelligence method" that is exempt from disclosure no matter how old it is and despite the fact that other PDBs have been declassified and disclosed without adverse effect.

The decision is a disappointment for historians and others who looked to the courts to impose restraint and rationality on CIA's indiscriminate secrecy practices.

For complete background, see "Judge Grants Immortality to Presidential Privilege" from the National Security Archive here:

JUSTICE O'CONNOR AND OPEN GOVERNMENT

It has not been widely recognized that retiring Supreme Court Justice Sandra Day O'Connor was an effective proponent of open government.

In one 1993 case, Justice O'Connor did what many lower court judges now seem unwilling or unable to do: She rejected a sweeping assertion of secrecy by the Federal Bureau of Investigation and insisted on a more measured approach.

"The Government would have us presume that virtually every [law enforcement] source is confidential," Justice O'Connor noted.

"Although we recognize that confidentiality often will be important to the FBI's investigative efforts, we cannot say that the Government's sweeping presumption comports with 'common sense and probability'," she wrote for the majority in U.S. Dept of Justice v. Landano (1993).

Instead of a blanket presumption of secrecy, the court ruled, the government was obliged to justify each proposed exemption from disclosure under the Freedom of Information Act.

The application of "common sense and probability" to secrecy policy remains a radical innovation.

For a tribute to Justice O'Connor, including reference to the Landano case, see "Sandra Day O'Connor's Legacy" from the Electronic Privacy Information Center:

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

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