from the FAS Project on Government Secrecy
Volume 2009, Issue No. 37
April 23, 2009

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Following an August 28, 2008 explosion at the Bayer CropScience facility in Institute, West Virginia, Bayer used official secrecy restrictions to limit public awareness of the accident and to impede investigators from the U.S. Chemical Safety Board, a congressional review found.

"Bayer engaged in a campaign of secrecy by withholding critical information from local, county, and state emergency responders; by restricting the use of information provided to federal investigators; by undermining news outlets and citizen groups concerned about the dangers posed by Bayer's activities; and by providing inaccurate and misleading information to the public," according to an April 21, 2009 staff report from the House Energy and Commerce Committee.

In testimony before Rep. Bart Stupak's Oversight Subcommittee this week, Bayer CropScience President William B. Buckner admitted that Bayer's secrecy practices were driven not only by "legitimate security concerns" but also by "a desire to limit negative publicity generally about the company or the Institute facility." "We concede that our pursuit of [secrecy protection] was motivated, in part, by a desire to prevent that public debate from occurring in the first place," Mr. Buckner said.

While Mr. Buckner's candor is unusual, his company's instinctive reliance on secrecy to help shape public perception is not. Such politically motivated secrecy is a predictable and normal response to unwanted scrutiny. Policymakers and others who aspire to an optimal degree of transparency in government must anticipate such responses and deploy countermeasures against them.

A new opportunity to help develop such countermeasures arises in a White House policy on scientific integrity that is now under development, and which would require public disclosure of most policy-relevant scientific and technological information:

"Except for information that is properly restricted from disclosure under procedures established in accordance with statute, regulation, Executive Order, or Presidential Memorandum, each agency should make available to the public the scientific or technological findings or conclusions considered or relied on in policy decisions," according to a March 9, 2009 statement from President Obama.

But how can the new policy ensure that only information which is "properly restricted" by statute or regulation will be withheld from disclosure? What tools can be put in place against the inevitable political abuse of secrecy authority? How can the new policy overcome the ordinary "desire to limit negative publicity"?

There are several mutually reinforcing ways to answer such a question. Briefly, a thorough reconsideration of the criteria for restricting information is needed, along with a reexamination of how such criteria are exercised in practice. New oversight mechanisms and disclosure authorities are needed to promote compliance. New appeal procedures would help to adjudicate difficult or contested cases.

"We fully acknowledge the need for further guidance on what materials should and should not be marked as SSI [sensitive security information]," Mr. Buckner told Congress this week. In fact, further guidance and improved clarity are needed all around.

In a Federal Register notice today, the Office of Science and Technology Policy (OSTP) solicited public comment on the implementation of President Obama's memorandum on scientific integrity.

"Comments from the public will help the OSTP determine what should be included in these recommendations. Respondents are invited to suggest: (1) Recommendations that would be responsive to the aims of the President, (2) specific implementing strategies, and (3) data and empirical evidence related to the effectiveness of strategies to promote scientific integrity," the April 23 Federal Register notice said.

Public comments are due by May 13.


The Senate Intelligence Committee released a newly declassified account of the opinions issued by the Justice Department Office of Legal Counsel concerning CIA's interrogation and detention program during the Bush Administration. The document is neutral, dispassionate, and maybe a little dull, particularly when compared with the gruesomely detailed contents of some of the OLC opinions themselves, on which it does not render any moral or legal judgment. Remarkably, release of this Senate report was blocked last year when the Bush Administration National Security Council refused to declassify it. But now it, and much more, has been released. See "Declassified Narrative Describing the Department of Justice Office of Legal Counsel's Opinions on the CIA's Detention and Interrogation Program," released April 22, 2009.

Another newly declassified report, from the Senate Armed Services Committee, does not shrink from drawing conclusions. "The report represents a condemnation of both the Bush administration's interrogation policies and of senior administration officials who attempted to shift the blame for abuse--such as that seen at Abu Ghraib, Guantanamo Bay, and Afghanistan--to low ranking soldiers. Claims, such as that made by former Deputy Secretary of Defense Paul Wolfowitz that detainee abuses could be chalked up to the unauthorized acts of a 'few bad apples,' were simply false," said Sen. Carl Levin in an April 21 floor statement introducing the report.

Does torture work? Preempting and perhaps foreclosing an argument advanced by former Vice President Dick Cheney and others, DNI Dennis C. Blair said in an April 21 statement that "The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means. The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security," he said.


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

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