DoD on Improving FOIA Operations

The Department of Defense is moving ahead smartly in response to President Bush’s executive order (EO) 13392 directing agencies to improve the processing of Freedom of Information Act requests.

Many outside observers were puzzled by the issuance of the December 14, 2005 order, since the current Administration has been no friend of FOIA or of public access to government information generally.

But even a perfunctory gesture from the President of the United States can have policy consequences, and agencies are now sorting through those consequences.

“Recent heightened interest in the FOIA from the public, the media, watchdog organizations, and the Congress has resulted in the need for the Federal Agencies to re-examine their FOIA programs,” wrote Michael B. Donley, DoD Director of Administration and Management.

“Historically, DoD Component FOIA programs have been under-emphasized, resulting in inadequate staffing and funding,” he wrote.

“To comply with the provisions of the EO, DoD Components must ensure that proper procedures are established and adequate resources are applied to their FOIA programs.”

The Project on Government Oversight obtained the DoD memorandum and provided a copy to Secrecy News.

See “Executive Order 13392 on the Freedom of Information Act — DoD Implementation,” memorandum for senior Department officials, February 1, 2006.

Meanwhile, however, the Pentagon public affairs office has been playing secrecy games with reporters, withholding budget documents from the press until the last possible moment.

See “DOD denies reporters budget prep time” by Pamela Hess, United Press International, February 6, 2006.

Air Force Special Operations

U.S. Air Force doctrine on special operations is presented in a new Air Force publication.

“This publication provides the overarching doctrinal guidance for the conduct of Air Force special operations across the full range of military operations. It describes the characteristics, capabilities, United States Special Operations Command (USSOCOM) core tasks, Air Force Special Operations Command (AFSOC) core missions, typical organization, and command and control of AF Special Operations Forces.”

“The doctrine in this document is authoritative, but not directive…. Airmen should read it, discuss it, and practice it.”

See “Special Operations,” Air Force Doctrine Document 2-7, 16 December 2005.

Secrecy of Mine Inspections Reduced

In a rare relaxation of mounting restrictions on disclosure of government information, the Labor Department has agreed to reverse its policy of withholding notes taken by mine safety inspectors from prompt release under the Freedom of Information Act.

In a January 11 letter written in the wake of the Sago mine disaster, Rep. Henry Waxman (D-CA) had urged the Secretary of Labor to permit disclosure of these notes (Secrecy News, 01/17/06).

“This unwarranted secrecy may protect the mining industry from embarrassing disclosures, but it undermines accountability and mine safety,” Rep. Waxman wrote.

On January 20, three House Republicans, including Rep. John Boehner (R-OH), the new House Majority Leader, wrote to Labor Secretary Elaine Chao to make the same request.

“We share the concern expressed by some that … this blanket policy has had the effect of denying important information about mine safety to the public.”

In a January 30 reply to Majority Leader Boehner, a Labor Department official wrote that the disclosure policy would be revised to permit release of mine inspector notes “effective immediately.”

Rep. Boehner applauded the move. “Our request to Secretary Chao was made for one simple reason: to get more information, more quickly into the hands of Congress, the families impacted by the tragedies, and all those with a stake in mining and these investigations,” he said.

In a January 31 news release, Rep. Boehner and his colleagues took credit for the step. See “In Response to House Republican Request, Labor Department Makes Key Policy Change Impacting Mine Investigations”.

Sunshine Week on the Way

Sunshine Week is a broad-based initiative intended to focus public concern over the growth of official secrecy.

During the week of March 13, 2006, there will be a series of events exploring the diverse and increasing barriers that obstruct public access to government information.

Details and educational resources are available on the Sunshine Week web site.

Pentagon Abandons Revision of Nuclear Doctrine

The Department of Defense has abandoned plans to revise its Doctrine for Joint Nuclear Operations.

The draft revision became controversial when it was disclosed last year because of its unusually frank discussion of preemptive use of nuclear weapons.

The decision to cancel the revision was discovered by Hans Kristensen of the Federation of American Scientists. He described the move last week and provided relevant links in the new blog of the FAS Strategic Security Project.

UPDATE: Some of the backstory on the proposed draft nuclear doctrine, with related links, was presented by ArmsControlWonk last year.

CIA on Remote Medical Diagnosis (1979)

A noteworthy article from the CIA’s Studies in Intelligence Journal, published in 1979 and declassified last year, describes the use of “remote medical diagnosis” for foreign intelligence purposes.

“Remote medical diagnosis is defined as the identification of the illnesses affecting a person without the benefit of a formal medical examination.”

The authors provide capsule accounts of CIA medical diagnoses of various world leaders, including French President Georges Pompidou, Algerian President Houari Boumediene, Soviet Premier Leonid Brezhnev, and Israeli Prime Minister Menahem Begin.

The technique, such as it is, is far from infallible, the authors note. Although Israeli Prime Minister Golda Meir suffered from malignant lymphoma for more than 12 years, “We had been entirely unaware that she had this lethal disease.”

See “Remote Medical Diagnosis: Monitoring the health of Very Important Patients,” Studies in Intelligence, Spring 1979 (1.2 MB PDF file) (thanks to AT).

Mau-Mauing the Congressional Research Service

Congressional Research Service analyses of the Bush Administration’s domestic surveillance activity have been exceptionally influential, and their influence has been magnified by media coverage that has sometimes overstated the rather nuanced conclusions of CRS analysts.

But now the CRS may face a backlash from Republican leaders in Congress who apparently resent the agency’s high profile and independent judgment, and seek to rein it in.

There has probably never been a CRS report that was cited as frequently as the January 5, 2006 CRS memorandum which delicately concluded that the NSA surveillance operation “does not seem to be as well-grounded” as the Administration contends.

Another CRS memorandum on January 18 observed that since the NSA operation was not a “covert action,” the decision to limit congressional notification to eight members of Congress as is done in the case of covert actions “would appear to be inconsistent with the law.”

Though some would consider these findings tentative or even timid, their broad acceptance has enraged the President’s allies in Congress.

“CRS’s work on these matters has not been ‘free of partisan or other bias’,” wrote House Intelligence Committee chair Rep. Pete Hoekstra in a February 1 letter to CRS Director Daniel P. Mulhollan.

“I ask for immediate action on your part to ensure that CRS truly provides ‘comprehensive and reliable’ legislative research that is ‘free of partisan or other bias’.”

In his February 1 letter, Rep. Hoekstra specifically disputed the suggestion by CRS analyst Alfred Cumming in his January 18 memo that there was any legal obligation to inform all members of the intelligence committees of the NSA surveillance operation. “It is clear that such reporting is not mandated by the law,” he wrote.

By Rep. Hoekstra’s lights, the statute that limits congressional notification of covert action to eight members of Congress would be redundant or meaningless, since the President would have no obligation to inform other Members of the intelligence committees anyway.

But that has not been the conventional reading of the law, and Rep. Hoekstra’s interpretation has been contested by his Committee’s Ranking Member, Rep. Jane Harman.

“I would appreciate your assistance in ensuring that CRS refrain from speculating with respect to highly sensitive national security matters on which it has no authoritative knowledge,” Rep. Hoekstra thundered to CRS Director Mulhollan (whom he mistakenly referred to as Mulholland).

CRS analyst Cumming is a former staff director of the Senate Intelligence Committee with many years of experience in intelligence oversight. Rep. Hoekstra is a relative newcomer to the field.

Although U.S. intelligence is embroiled in public controversy over the NSA activity, the House Intelligence Committee under Chairman Hoekstra has had little to contribute to public understanding. He has held no public hearings, and has left it to Ranking Member Rep. Harman, to represent and articulate public concerns.

Rep. Hoekstra’s letter to CRS, which was first noted approvingly by the conservative web site Powerline, was copied to three congressional Republican leaders, but to no Democrats.

Since the January 5 CRS memo was published on the Federation of American Scientists web site on January 6, it has been downloaded thousands of times each day, and as many as forty thousand times in a single 24 hour period.

National Academy Views Biosecurity, Access to Information

A major new report from the National Research Council warns of future
biological threats and urges increased attention to mechanisms for
prevention, detection, mitigation and response to the destructive
use of biological agents.

But secrecy is not one of those mechanisms, the report says.

“In general, restrictive regulations and the imposition of
constraints on the flow of information are not likely to reduce the
risks that advances in the life sciences will be utilized with
malevolent intent in the future.”

“In fact, they will make it more difficult for civil society to
protect itself against such threats and ultimately are likely to
weaken national and human security.”

“The Committee endorses and affirms policies and practices that, to
the maximum extent possible, promote the free and open exchange of
information in the life sciences,” the report’s first recommendation

The report contains some valuable extended discussion of information
policy in the context of biosecurity (esp. pp. 163-171).

See this January 31 news release for “Globalization, Biosecurity, and
the Future of the Life Sciences.”

CRS on Foreign Scientists in the United States

“The preeminent position that the United States has enjoyed in the life sciences has been dependent upon the flow of foreign scientific talent to its shores,” the National Research Council said in its new report on biosecurity (p. 159).

But onerous visa requirements and so-called “deemed export” restrictions on scientific communications could erode the contribution of foreign scientists to U.S. preeminence, the report warned.

A newly updated survey of foreign scientists and engineers and associated policy questions has been prepared by the Congressional Research Service. A copy was obtained by Secrecy News.

See “Foreign Science and Engineering Presence in U.S. Institutions and the Labor Force,” Congressional Research Service, updated January 3, 2006.

CRS on Awards of Attorneys’ Fees

The possibility that Freedom of Information Act requesters can recover attorneys’ fees in FOIA lawsuits makes it easier to find attorneys to represent requesters on a contingency or pro bono basis.

Conversely, when new restrictions on the award of attorneys fees are put in place, as they have been in recent years, the availability of pro bono attorneys in FOIA cases has seemed to shrink accordingly.

FOIA reform legislation introduced last year by Sen. John Cornyn (R-TX) and Sen. Patrick Leahy (D-VT) would restore the previous standard which permitted recovery of attorneys’ fees whenever a requester’s lawsuit resulted in an agency decision to release the requested record.

The larger question of Attorneys’ Fees generally (not specifically in the FOIA context) is treated at length in a new report from the Congressional Research Service. A copy was obtained by Secrecy News.

See “Awards of Attorneys’ Fees by Federal Courts and Federal Agencies,” updated January 24, 2006.