News from the FAS Project

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I'm forwarding this one, FYI for all.... Very interesting. Please note, all

this comes from the FAS Project.

SECRECY NEWS

from the FAS Project on Government Secrecy

Volume 2003, Issue No. 108

December 15, 2003

DOD WITHHOLDS STUDY ON ANTHRAX LESSONS LEARNED

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 ((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). See:

http://www.fas.org/sgp/news/2003/12/dtra121203.pdf

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. See:

http://www.fas.org/sgp/news/2003/12/dtra-appeal.pdf

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 SN, 8/19/03).