SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 47
April 18, 2006

Secrecy News Blog: http://www.fas.org/blog/secrecy/

Support Secrecy News: http://www.fas.org/static/contrib_sec.jsp

DOD SEEKS NEW FOIA EXEMPTION FOR UNCLASSIFIED WMD INFO

The Department of Defense is seeking a broad new exemption from the Freedom of Information Act for unclassified information relating to weapons of mass destruction.

According to the proposed legislation, "Examples of such information could include ... formulas and design descriptions of lethal and incapacitating materials; maps, designs, security/emergency response plans, and vulnerability assessments for facilities containing weapons of mass destruction materials."

See the DoD legislative proposal here:

The proposal is puzzling because most such information, including that which is not classified, is already exempt from the FOIA. Meanwhile, some related categories of information that are not exempt should arguably remain public.

The draft DoD language "is so broad as to potentially sweep everything related to any chemical facility into the exemption," said Meredith Fuchs, general counsel at the National Security Archive. "There is nothing in here that explicitly protects the public's need to know some things about these facilities, e.g. violations of the law, lack of required certifications or licenses."

Furthermore, she said, "the lack of a temporal limit on the withholdability of the information, and the lack of any appeals mechanism, creates a potential black hole."

She suggested that any such exemption should be more narrowly "focused on what they actually are trying to protect, which I think is vulnerability information DOD learns of regarding private facilities."

The draft DoD FOIA exemption was first reported in "DOD Asks For New FOIA Exemption Covering WMD-Related Information" by Keith Costa, Inside the Pentagon, April 13:

GAO VIEWS SENSITIVE BUT UNCLASSIFIED INFO

The challenges posed by the use of "sensitive but unclassified" control markings were examined in a comprehensive new report from the Government Accountability Office.

"The agencies that GAO reviewed are using 56 different sensitive but unclassified designations (16 of which belong to one agency) to protect information that they deem critical to their missions -- for example, sensitive law or drug enforcement information or controlled nuclear information."

"For most designations there are no governmentwide policies or procedures that describe the basis on which an agency should assign a given designation and ensure that it will be used consistently from one agency to another. Without such policies, each agency determines what designations and associated policies to apply to the sensitive information it develops or shares. More than half the agencies reported challenges in sharing such information."

See "Information Sharing: The Federal Government Needs to Establish Policies and Processes for Sharing Terrorism-Related and Sensitive but Unclassified Information," March 2006 (1.8 MB PDF):

The Office of the Director of National Intelligence (ODNI) is currently coordinating an effort to standardize governmentwide procedures for the handling of "sensitive but unclassified" information.

But the ODNI rather impudently refused to cooperate with the GAO because "the review of intelligence activities is beyond the GAO's purview," according to Kathleen Turner of the ODNI Office of Legislative Affairs.

The Project on Government Oversight dissected the matter here:

See also "Report criticizes U.S. terror info sharing" by Shaun Waterman, United Press International, April 18:

THE AIPAC CASE: THE DEFENSE STRIKES BACK

Attorneys for two former officials of the American Israel Public Affairs Committee accused of mishandling classified information vigorously rebutted the latest prosecution arguments against their clients in an April 6 pleading.

"In the history of the Espionage Act, the government has never embarked on a prosecution like this one -- of private citizens outside government, not accused of espionage, for receiving and transmitting oral information in the context of their jobs as foreign policy advocates protected by the First Amendment," the defense argued.

The defense brief disputed the prosecution's new claim that a 1940 case known as Gorin was a pertinent precedent to the current case. In that earlier case, the defendant was a foreign agent who paid his sources for access to restricted information. But unlike Gorin, the present defendants are not accused of being foreign agents, nor of bribing or coercing the disclosure of information.

See "Defendants' Reply to Government's Supplemental Response to Motion to Dismiss," April 6, 2006 (1 MB PDF):

An earlier defense brief on related matters, dated March 31 and initially filed under seal, is now available here (2.2 MB PDF):

Recent news coverage of the case includes "Leak Flap Seen Aiding Lobbyists' Case" by Marc Perelman, Forward, April 14:

AIR FORCE ISSUES DOCTRINE ON HOMELAND OPERATIONS

The U.S. Air Force has produced a new doctrinal document that articulates its role in "homeland operations."

"This document describes how our Air Force organizes and employs air and space power in operations in the homeland."

"It focuses on how we support civilian agencies through the appropriate combatant commander in a variety of operations, such as neutralizing terrorist threats, responding to natural disasters, and supporting the traditional mission of homeland defense."

See "Homeland Operations," Air Force Doctrine Document AFDD 2-10, March 21, 2006:

REVERENCE FOR THE LAW, AND STATUTORY INTERPRETATION

The best way to ensure the perpetuation of democratic institutions in turbulent times, said Abraham Lincoln in an 1838 speech, is to cultivate a sense of reverence for the law.

"Let reverence for the laws be breathed by every American mother to the lisping babe that prattles on her lap -- let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs; -- let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice."

"And, in short, let it become the political religion of the nation," said the 28 year old Lincoln.

A newly updated report from the Congressional Research Service introduces lay readers to the principles of statutory interpretation used by the Supreme Court to interpret the law.

Some of these rules are commonsensical. Thus, ordinarily, "shall" is mandatory and "may" is permissive.

Others are less obvious but no less important. The principle of "constitutional avoidance," for example, dictates that a statute should be read, "if fairly possible," so as not to be found unconstitutional.

At Congressional direction, CRS does not make its products directly available to the American public. But a copy of the new CRS report was obtained by Secrecy News.

See "Statutory Interpretation: General Principles and Recent Trends," updated March 30, 2006:

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

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