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

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:

A supplementary appendix including original case files and the declassified accident reports is here:

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:

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:

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):

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

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