Secrecy News: Anthrax Lessons Silenced; 2004 Intel Bill
Secrecy News: Anthrax Lessons
Silenced; 2004 Intel Bill
About
Secrecy News
SECRECY NEWS is an email publication of
the Federation of American Scientists (FAS)
Project on Government Secrecy. It provides
informal coverage of new developments in secrecy,
security and intelligence policies, as well
as links to new acquisitions on the Federation
of American Scientists web site. It
is published 2 to 3 times a week, or as events
warrant. Secrecy
News Article Index
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).
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.
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 Secrecy
News, 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."
