News From Fas Project

[HARDCORE]

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 (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). 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).