SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 96
September 20, 2012

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

GOVT APPEALS ORDER TO RELEASE CLASSIFIED DOCUMENT

Government attorneys this week appealed an extraordinary court order that required the Office of the United States Trade Representative (USTR) to publicly release a classified government document. They said the order reflected "improper skepticism" of the government.

In response to a Freedom of Information Act lawsuit filed by the Center for International Environmental Law, DC District Judge Richard W. Roberts had ruled earlier this year that a classified USTR position paper was not "properly classified" and therefore must be disclosed under FOIA. ("Court Says Agency Classification Decision is Not 'Logical'," Secrecy News, March 2, 2012.)

This was a bold move by Judge Roberts, since it involved making an independent assessment of (i.e., "judging") the validity of a government classification action. That is a task that courts have gradually shunned over the years. When most courts review whether a document has been "properly classified" (and therefore exempt from disclosure under FOIA) they normally ask whether formal classification procedures have been followed, not whether there is a substantive basis for classification. Judge Roberts did the latter. He concluded that USTR's classification of the document in question was not "logical" and so did not warrant an exemption from disclosure.

For critics of classification policy who believe that new corrective mechanisms are needed to curb indiscriminate classification, Judge Roberts' decision was a thrilling departure from the ordinary practice of judicial "deference." It is deference, after all, that has yielded the often dysfunctional classification system that we have today.

But the government naturally sees it differently.

Judge Roberts "inappropriately second-guessed the Executive's expertise in the uniquely sensitive area of foreign relations," according to an appeals brief filed by government attorneys this week. "The court's refusal to accept the judgment of trade negotiators concerning the harm to future negotiations failed to give deference where it was due, and overstepped the bounds of the judicial role in resolving FOIA cases."

"The district court here failed to apply governing precedent, and subjected the government's justifications to improper skepticism and second-guessing," the appeals brief said.

The appeals brief cited an imposing body of case law in support of its position on judicial deference to executive classification authority, and restated its views of the harm to U.S. foreign relations that could result from release of the one-page USTR memo that is in dispute.

However, the new brief did not go so far as to suggest that courts lack the authority to compel the involuntary disclosure of a classified document. That is an argument of last resort.

A response from the appellee is due next month.

DECLASSIFICATION DECLASSIFIED: PRC AND THE W88 WARHEAD

In 2006, the Department of Energy formally declassified the already widely publicized fact "That the People's Republic of China obtained some Restricted Data information on the W88 [nuclear] warhead, and perhaps the complete W88 design."

Then, in a remarkable display of bureaucratic acrobatics, DOE classified the memo that authorized the declassification of that information. The declassification memo was found to merit classification at the Secret/Restricted Data level.

Five years later, in 2011, the two-sentence memo was reviewed for declassification and DOE has now released it.

As often seems to be the case, declassification here lags behind disclosure rather than leading it. For a convenient summary of issues surrounding China and the W88, see "China: Suspected Acquisition of U.S. Nuclear Weapon Secrets," Congressional Research Service, updated February 1, 2006.

HAS IRAN VIOLATED THE NPT?, AND MORE FROM CRS

Has Iran violated the Nuclear Nonproliferation Treaty? The answer is "unclear," says the Congressional Research Service in a newly updated report. "The treaty does not contain a mechanism for determining that a state-party has violated its obligations. Moreover, there does not appear to be a formal procedure for determining such violations."

The CRS report reviews the specific allegations that Iran's nuclear activities are in violation of its obligations under the NPT, and examines the legal framework for evaluating such allegations. See Iran's Nuclear Program: Tehran's Compliance with International Obligations, September 18, 2012:

Some other new CRS reports that Congress has not made available to the public include the following.

Unauthorized Aliens' Access to Federal Benefits: Policy and Issues, September 17, 2012:

Unemployment Insurance: Programs and Benefits, September 19, 2012:

Medical Loss Ratio Requirements Under the Patient Protection and Affordable Care Act (ACA): Issues for Congress, September 18, 2012:

Marine Corps Amphibious Combat Vehicle (ACV) and Marine Personnel Carrier (MPC): Background and Issues for Congress, September 11, 2012:

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

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