Secrecy News -- 08/26/03 (IF)

Tue Aug 26 13:57:25 EDT 2003

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 71
August 26, 2003

**	CLASSIFIED INFO COVER SHEETS WITHHELD, RELEASED
**	THE ELASTIC "HIGH 2" FOIA EXEMPTION
**	GAO REPORT ON VP'S ENERGY TASK FORCE
**	REP. OTTER PRAISES OPPOSITION TO PATRIOT ACT
**	RUSSIA: NEW STATUTE ON INTELLIGENCE
**	CIA HISTORICAL REVIEW PANEL STATEMENT
**	CORRECTION RE: KATHRYN DYER
**	SAM COHEN'S "SHAME" ONLINE
**	SCIENCE AS DEMOCRATIZER
**	CLASSIFICATION HUMOR

CLASSIFIED INFO COVER SHEETS WITHHELD, RELEASED

The arbitrary quality of much government secrecy is underscored by
the fact that what one agency will withhold from the public, another
agency will sometimes release.

That is what happened to Freedom of Information Act (FOIA) requester
Robert G. Todd when he asked two different agencies for a copy of
the generic cover sheets that are used to identify classified
documents.

These unclassified color-coded cover sheets (Standard Forms 703, 704
and 705), which are produced by the General Services Administration,
are often attached to official documents to tag them as classified.
Yellow sheets are used for Confidential documents, red for Secret,
and orange for Top Secret.

In response to a request from Mr. Todd, the Department of Defense
(DoD) last month refused to provide a copy of these cover sheets,
citing FOIA exemption (b)(2)(high), which shields information that
could enable "circumvention" of agency rules, policies or statutes.

Release of the denied cover sheets would "imped[e] the DoD in the
conduct of its mission," asserted H.J. McIntyre of the DoD FOIA
Directorate in a July 29 denial letter.

In contrast, the General Services Administration released the cover
sheets "with no qualms whatsoever," said Mr. Todd.  And yet "The
Republic still stands," he noted.

Copies of the cover sheets for classified information are available
here (as MS Word documents):

      http://www.fas.org/sgp/othergov/index.html#cov

THE ELASTIC "HIGH 2" FOIA EXEMPTION

Perhaps the single most significant change in Freedom of Information
Act policy in recent years has been the expanding scope of the
so-called "high 2" FOIA exemption, which is increasingly serving as
a catch-all pretext for withholding almost anything the government
does not want to release.

The FOIA includes nine exemptions.  Exemption 2 applies somewhat
opaquely to records that are "related solely to the internal
personnel rules and practices of an agency."

Over time, this exemption has been elaborated to apply to internal
agency matters of little or no public interest ("low 2") and, more
consequentially, to internal agency records, such as law enforcement
manuals, that could enable recipients to circumvent laws or agency
practices (designated "high 2").

Under the October 2001 Ashcroft FOIA policy, the government has
increasingly relied upon the "high 2" exemption to withhold all
manner of unclassified homeland security and critical infrastructure
information, sometimes on questionable grounds.

"Agencies should be sure to avail themselves of the full measure of
Exemption 2's protection for their critical infrastructure
information as they continue to gather more of it, and assess its
heightened sensitivity, in the wake of the September 11 terrorist
attacks," the Justice Department has urged.

Agencies have evidently taken this message to heart and have used the
high 2 exemption to withhold such things as the classified
information cover sheets noted above and the unclassified report on
lessons learned from the 2001 anthrax attacks discussed in the
previous issue of Secrecy News.

"Whether there is any public interest in disclosure is legally
irrelevant under this 'anti-circumvention' aspect of Exemption 2,"
according to the Justice Department.  See:

      http://www.usdoj.gov/oip/exemption2.htm#high2

GAO REPORT ON VP'S ENERGY TASK FORCE

The General Accounting Office (GAO) issued its final report on the
Vice President's Energy Task Force with a parting shot at the Bush
Administration's secrecy.

"The Office of the Vice President's unwillingness to provide the
[Task Force] records or other related information precluded GAO from
fully achieving its objectives and substantially limited GAO's
ability to comprehensively analyze the [Task Force] process," the
report stated.

White House refusal to disclose information concerning meetings of
the Task Force was one of the early, pre-9/11 harbingers of the
Bush Administration's restrictive secrecy policies.  It clearly
indicated the Administration's preference for taking the public's
business behind closed doors, to the growing impoverishment of the
deliberative process.

A copy of the GAO report, entitled "Energy Task Force: Process Used
to Develop the National Energy Policy," is posted here:

      http://www.fas.org/irp/gao/energy.pdf

REP. OTTER PRAISES OPPOSITION TO PATRIOT ACT

"Spontaneous grassroots movements that begin in communities and grow
into national movements can, and often actually do, produce
meaningful change in government."

It may sound like Saul Alinsky, but it's actually Rep. C.L. "Butch"
Otter, Republican of Idaho, applauding efforts to rise up "against
the USA Patriot Act and its efforts to undermine or eliminate
essential liberties."

Rep. Otter led the successful move in the House last month to
repeal the so-called "sneak and peek" provisions of the USA Patriot
Act which permit delayed notification of searches by law enforcement
under some circumstances.

"The resistance to intrusive government policies is growing and
reminds us that Americans remain firmly committed to liberty and
democracy," Rep. Otter said in an August 13 statement.  See:

      http://www.gop.gov/item-news.asp?docId=3D58602

RUSSIA: NEW STATUTE ON INTELLIGENCE

By presidential edict earlier this month, Russia adopted a new
Statute on the Federal Security Service (FSB) of the Russian
Federation.  It outlines the organization, objectives and functions
of this Russian intelligence agency.  See the text of the new
statute, translated by the Foreign Broadcast Information Service,
here:

    http://www.fas.org/irp/world/russia/fsb/statute.html

CIA HISTORICAL REVIEW PANEL STATEMENT

The CIA Historical Review Panel (HRP), a group of historians and
political scientists convened by the Director of Central
Intelligence to provide advice on declassification policy, released
its latest statement of activities this week.

The brief statement provides a skeletal account of the topics
addressed by the Panel that is interesting, but finally
disappointing.

The HRP's fatal flaw is that it has acquiesced in the Agency
position that CIA declassification policy is too sensitive to be
fully aired in public.   As a result, the Panel has itself become
another obstacle to the correction of obsolete secrecy policies.

"Because the HRP's advice to the DCI must be completely frank and
candid, we are not reporting Panel recommendations," the Panel
stated, as if its members were incapable of being frank and candid
about their policy positions except on a confidential basis.

If the Panel members' frank and candid recommendations had led to any
significant changes in declassification policy over the last several
years, their concession to Agency secrecy might be justified in
practice if not in principle.  But there is little evidence of that.
Instead, they have merely deprived themselves of the leverage and
insight that public participation could offer.

See a copy of the latest HRP statement here:

      http://www.fas.org/sgp/advisory/ciahrp8.html

CORRECTION RE: KATHRYN DYER

Secrecy News reported incorrectly that Kathryn Dyer retired from the
CIA (SN, 8/13/03).  Although she recently left her longstanding
position as Information and Privacy Coordinator, she is still
employed by the CIA in another capacity.

SAM COHEN'S "SHAME" ONLINE

Nuclear weaponeer Sam Cohen's memoir "Shame: Confessions of the
Father of the Neutron Bomb" is "not a good book in any conventional
sense," Secrecy News observed a while back (SN, 01/16/01).

"It is long, whiny, profane, and self-indulgent. It seems to have
escaped editing altogether. Part reminiscence, part crank manifesto,
it is a mess. But it is an honest and compelling mess that students
of nuclear history will not want to miss."

It is now available online here:

      http://www.athenalab.com/neutron7-t.pdf

SCIENCE AS DEMOCRATIZER

"The more scientifically literate people become, the more they will
expect, even demand to participate in the political process, and the
more effective they will be at it."

That is the nub of an argument advanced by Robert Lawrence Kuhn, with
appropriate caveats, nuances and counterexamples, in an essay in
American Scientist magazine.

See his "Science as Democratizer," September-October 2003, here:

   http://www.americanscientist.org/template/AssetDetail/assetid/25691

CLASSIFICATION HUMOR

National security classification policy is not known as a source of
many laughs, for at least a couple of reasons.  When it is
legitimate, protecting classified information from disclosure can be
as serious as life and death.  Besides, legitimate or not, the
discipline of classification has a soul-deadening quality that
discourages independent thought, let alone whimsy.

But one anonymous critic whose whimsy could not be completely
suppressed produced this mock set of classified information cover
sheets, modeled on the official versions discussed above.  See:

      http://www.fas.org/sgp/othergov/coversheets.pdf

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

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood at fas.org
voice:  (202) 454-4691

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