SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 19
March 4, 2003
** ORIGINAL 1953 "STATE SECRETS" RULING DISPUTED
** FERC ADOPTS "NEED TO KNOW" INFO POLICY
** BIOSECURITY & BIOTERRORISM JOURNAL
** THE WOODWARD EXCEPTION TO CLASSIFICATION
ORIGINAL 1953 "STATE SECRETS" RULING DISPUTED
A 1953 Supreme Court decision that is one of the cornerstones of
national security secrecy policy relied on false government
information, the Court was told in a startling petition filed
last week.
The decision, United States v. Reynolds, is the judicial
foundation of the "state secrets privilege." It provides the
precedential basis for asserting that there are "military
matters which, in the interest of national security, should not
be divulged," not even to a federal court.
The Reynolds case originated over 50 years ago when the widows
of three crew members who died in a 1948 crash of a B-29
Superfortress bomber requested accident reports on the crash.
The Air Force denied the request and filed affidavits with the
Supreme Court claiming that the withheld reports contained
information about the aircraft's secret mission and described
secret electronic equipment on board that had to be protected
from disclosure. The Court, citing that claim, ruled in favor
of the Air Force and established the state secrets privilege.
"But it turns out that the Air Force's affidavits were false,"
according to the new petition filed by the surviving widows or
their heirs. The recently declassified Air Force accident
reports contain nothing whatsoever about a secret mission or
sensitive electronic equipment.
"In telling the Court otherwise, the Air Force lied," the
Petitioners said.
The petitioners want the Court to vacate the 1953 Reynolds
decision (345 U.S. 1 (1953). But they take no position on the
body of law that derives from it. "Whether the legal
principles established in Reynolds are right or wrong is for
another day and another case."
"For petitioners, the only issue this Court must confront today
is whether it will tolerate a fraud -- a fraud that struck at
the integrity of the Court's decision-making process and that
cheated three struggling widows and their children out of that
which was rightly theirs."
See the February 26 "Petition for a Writ of Error Coram Nobis to
Remedy Fraud Upon This Court" here:
http://www.fas.org/sgp/othergov/reynoldspet.pdf
A supplementary appendix including original case files and
the
declassified accident reports is here:
http://www.fas.org/sgp/othergov/reynoldspetapp.pdf
The Justice Department has not yet commented on the
matter.
FERC ADOPTS "NEED TO KNOW" INFO POLICY
In an potentially momentous change in government information
policy, the Federal Energy Regulatory Commission (FERC) will
now process public requests for access to certain kinds of
sensitive energy infrastructure information selectively,
depending on who the requester is and why the information is
sought.
Requesters will have to provide a "detailed statement explaining
the particular need for and intended use of the information"
that will then be evaluated by an agency official. In effect,
the new policy imposes a differential "need to know" standard
on members of the public.
The policy is intended to protect "critical energy
infrastructure information," i.e. critical infrastructure
information that "relates to the production, generation,
transportation, transmission, or distribution of energy [and]
could be useful to a person in planning an attack...."
"These new steps will help keep sensitive infrastructure
information out of the public domain, decreasing the likelihood
that such information could be used to plan or execute
terrorist attacks," according to the new statement of policy.
FERC downplayed any potential adverse impact of the move,
arguing that the alternative to selective disclosure of such
information was no disclosure at all. And while access to
"critical energy infrastructure information" would be denied to
ordinary requesters under the Freedom of Information Act, the
Commission indicated that "state agencies, landowners,
environmental groups [and others] may be found to have a need
for [such] information in a particular situation."
The text of the new rule, as published in the Federal Register
on March 3, may be found here:
http://www.fas.org/sgp/news/2003/03/fr030303.html
BIOSECURITY & BIOTERRORISM JOURNAL
"It is imperative that there be an informed, vigorous, and
wide-ranging public discussion about the bio-weapons threat
and what to do about it," write Tara O'Toole and Thomas V.
Inglesby of the Johns Hopkins Center for Civilian Biodefense
Strategies.
They are the co-editors of "Biosecurity and Bioterrorism," a
new
peer-reviewed quarterly journal that is intended "to foster a
deepening understanding of the threat posed by biological
weapons and to broaden the spectrum of people who are
knowledgeable in these realms."
Further information, including a promising selection of articles
from the first issue, may be found here:
http://www.liebertpub.com/BSP/default1.asp
THE WOODWARD EXCEPTION TO CLASSIFICATION
The political abuse of the national security classification
system is shockingly manifest in Bob Woodward's best-selling
book "Bush at War," the conservative watchdog group Accuracy in
Media (AIM) complained in its latest publication.
"CIA Director [George J.] Tenet clearly authorized Woodward to
republish the contents of the President's Daily Briefing
(PDB).... [Yet] Tenet adamantly refused to provide copies of
the PDB to congressional investigators probing intelligence
failures prior to 9/11 and got the White House to exercise its
executive privilege weapon to block Capitol Hill's access to
back PDB copies. Executive privilege clearly does not apply to
Woodward," according to the AIM Report, edited by Cliff Kincaid
and Notra Trulock.
"Had the leaks not come from Tenet directly, government security
officials would be preparing 'damage assessments' to show how
much classified intelligence had been revealed and how the
leaks had harmed the nation's ability to collect that
intelligence in the future. Intelligence officials would be
sending 'referrals' to the Justice Department urging a full-
scale leak investigation. It's a safe bet that none of that will
happen and that security officials will reserve their wrath for
low-level violators," AIM concluded.
The AIM report tends to be overwrought and accusatory; it
assumes what it cannot prove, and the authors' critique is
diminished by their evident animosity towards Woodward, Tenet
and others.
But it serves as a timely reminder that the classification
system is a political artifact and is susceptible to political
abuse.
See "Mortuary Bob Hits a Gusher," AIM Report, February 28, here
(thanks to PW):
http://www.aim.org/publications/aim_report/2003/4.html
