[Intelforum] Secrecy News -- 12/15/08

Mon Dec 15 11:55:56 EST 2008

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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 117
December 15, 2008

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

Support Secrecy News
http://www.fas.org/sgp/donate.html

**	DOE SEEKS TO LIMIT "PUBLIC INTEREST" FOIA DISCLOSURES
**	JASON STUDY DEBUNKS GRAVITATIONAL WAVE "THREAT"
**	SEN. FEINGOLD URGES "CONCRETE STEPS" TO RESTORE RULE OF LAW
**	BORDER SEARCHES OF LAPTOPS, AND MORE FROM CRS
**	SUPPORT SECRECY NEWS

DOE SEEKS TO LIMIT "PUBLIC INTEREST" FOIA DISCLOSURES

A proposed new Department of Energy regulation would eliminate the
so-called "public interest" balancing test that encourages DOE officials
to release information under the Freedom of Information Act even though it
is legally exempt from disclosure if doing so would serve the public
interest.

"This proposed rule would remove the so-called 'extra balancing test'...
which states: 'To the extent permitted by other laws, the DOE will make
records available which it is authorized to withhold under [the FOIA]
whenever it determines that such disclosure is in the public interest',"
according to the December 9 proposal published in the Federal Register.

     http://www.fas.org/sgp/news/2008/12/fr120908.html

"This additional [public interest balancing] test requires DOE to make
available records that could be withheld under the FOIA exemptions, if DOE
determines that disclosure would be in the public interest.  DOE is
proposing to remove the extra balancing test, because it goes beyond the
requirements of the FOIA, and imposes unnecessary administrative
requirements on DOE."

It is true, by definition, that the balancing test in the existing DOE
regulation "goes beyond the requirements of the FOIA," because it
encourages disclosure of records the release of which is not legally
required.

But in an apparent non-sequitur, DOE also said that "the extra balancing
test does not alter the outcome of the decision to withhold information,
as DOE already incorporates Department of Justice guidance in applying
exemptions when determining whether or not to make a discretionary release
of information."

The difficulty with that statement is that current Department of Justice
guidance on discretionary release does not require explicit consideration
of the public interest in disclosure of exempt information.  To the
contrary, it promotes withholding of exempt information and promises to
defend agencies whenever they legally withhold such information.

     http://www.usdoj.gov/oip/discretionary.htm

In effect, the existing DOE regulation incorporates the 1993 FOIA policy
enunciated by then-Attorney General Janet Reno (and long since abandoned
by other agencies) which encouraged discretionary disclosures unless there
was a "foreseeable harm" to a legitimate government interest.  And the
proposed new DOE revision reflects the 2001 FOIA policy of Attorney
General John Ashcroft, who discouraged discretionary releases (though he
did not prohibit them) and urged withholding of records whenever there was
a "sound legal basis" for doing so.  As noted in a November 19, 2001
Defense Department memo, under the Ashcroft FOIA policy "Discretionary
disclosures are no longer encouraged."

It is interesting to observe that with the current DOE FOIA regulation in
effect there has been a striking difference in FOIA implementation between
the Department of Energy and other agencies.

Earlier this year, for example, President Bush ordered executive branch
agencies to provide comments on the recommendations of the Public Interest
Declassification Board for improving declassification practices.  Requests
under the Freedom of Information Act for copies of these comments were
consistently rejected by the Office of the Director of National
Intelligence, the Department of Defense, the Department of Homeland
Security and other agencies.  These agencies correctly noted that the
comments were inter-agency deliberative materials that were exempt from
disclosure under FOIA exemption (b)(5).

But one agency released its comments in full, despite the availability of
an exemption:  the Department of Energy. (See "Energy Dept is 'Committed'
to Improving Declassification," Secrecy News, June 5).  In other words, it
appears that the public interest balancing test and the approach to FOIA
that it represents do alter the outcome of the disclosure decision process
at DOE.

In comments on the proposed regulation submitted by the Federation of
American Scientists, we argued that "there is a widespread and
well-founded expectation that the incoming Obama Administration will
rescind the Ashcroft FOIA policy and define a more forthcoming disclosure
policy.  In light of that probable scenario, I would urge DOE to cancel
its proposed revision of [the public interest balancing test], or else to
suspend action on it for six months while the new Administration prepares
new government-wide FOIA guidance."

     http://www.fas.org/sgp/news/2008/12/fas120908.html

JASON STUDY DEBUNKS GRAVITATIONAL WAVE "THREAT"

The elite JASON defense science advisory panel dismissed claims that high
frequency gravitational waves (HFGW) could pose any kind of national
security threat.

In a study prepared for the Office of the Director of National
Intelligence, the JASONs concluded that "No foreign threat in HFGW is
credible, including: communication by means of HFGW; object detection or
imaging (by HFGW radar or tomography); vehicle propulsion by HFGW; or any
other practical use of HFGW."

Gravitational waves were predicted by Einstein's general theory of
relativity and their existence has been indirectly confirmed by
experiment.  But up to now they have never been directly measured.

"Unfortunately, relativity and gravitation theory have, over the last
century, been the subject of a great deal of pseudo-science, in addition
to real science. Therefore, in evaluating ambitious claims about
gravitational applications, one must consider the possibility that the
claims are misguided and wrong," the JASONs advised.  "There is no
substitute for seeking expert scientific and technical opinion in such
matters."

A copy of the new JASON report was obtained by Secrecy News.  See "High
Frequency Gravitational Waves," October 2008.

     http://www.fas.org/irp/agency/dod/jason/gravwaves.pdf

SEN. FEINGOLD URGES "CONCRETE STEPS" TO RESTORE RULE OF LAW

In a December 10 letter to President-elect Obama, Sen. Russ Feingold urged
the next Administration to take a series of specific measures to strengthen
the rule of law.  Distilled from the record of a September 16 Senate
Judiciary Committee hearing on the subject, the recommendations addressed
four topics in particular:  separation of powers, excessive government
secrecy, detention and interrogation policy, and domestic surveillance.

     http://www.fas.org/sgp/news/2008/12/feingold121008.html

The letter's recommendations on combating excessive government secrecy
included brief reference to a proposal stressed by the Federation of
American Scientists for a fundamental review of agency classification
guides to eliminate obsolete or unnecessary classification instructions.

Establishing such a review may be even more important than revising the
executive order on classification or rescinding of the Ashcroft policy on
FOIA, both desirable steps but which are only loosely coupled to daily
secrecy decisions.  By comparison, revising agency classification guides
-- which specify what information shall be classified at what level -- and
updating them to eliminate spurious secrecy requirements would have
immediate favorable consequences for agency practice, particularly since
many classification guides have not been reviewed for years.  (See
"Overcoming Overclassification," Secrecy News, September 16, 2008.)

  http://www.fas.org/blog/secrecy/2008/09/overclassification.html

BORDER SEARCHES OF LAPTOPS, AND MORE FROM CRS

Noteworthy new and updated reports from the Congressional Research Service
obtained by Secrecy News include the following.

"Iran's Nuclear Program: Status," updated November 20, 2008.

     http://www.fas.org/sgp/crs/nuke/RL34544.pdf

"Iran: Ethnic and Religious Minorities," updated November 25, 2008.

     http://www.fas.org/sgp/crs/mideast/RL34021.pdf

"Iran: U.S. Concerns and Policy Responses," updated November 24, 2008.

     http://www.fas.org/sgp/crs/mideast/RL32048.pdf

"Presidential Libraries: The Federal System and Related Legislation,"
updated November 26, 2008.

     http://www.fas.org/sgp/crs/secrecy/RS20825.pdf

"Nonmarital Childbearing: Trends, Reasons, and Public Policy
Interventions," November 20, 2008.

     http://www.fas.org/sgp/crs/misc/RL34756.pdf

"Border Searches of Laptop Computers and Other Electronic Storage
Devices," updated November 17, 2008.

     http://www.fas.org/sgp/crs/homesec/RL34404.pdf

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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