SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 110
December 19, 2003

DOD INSPECTOR GENERAL TO CURTAIL WEB-BASED INFO

The Defense Department Office of Inspector General (OIG) has adopted a new policy that would sharply limit the types of information that may be posted on its web site, Defense Week reported.

Not only will classified information be banned from the web, as always, but so will all other information that has not been "specifically approved for public release," as well as "information that is of questionable value to the general public."

The draconian new policy was first described in "Pentagon IG Sets New Policy on Web Information" by John M. Donnelly, Defense Week Daily Update, December 18, reposted with permission here:

A copy of the new OIG policy statement, dated December 5, is posted here:

In one sense, all of the Inspector General's publications are "of questionable value to the general public." Few members of the general public are likely to read the OIG's detailed audit reports. But they are often of great value to the press and public interest organizations that specialize in defense policy.

Whether the OIG realizes it or not, the new policy could damage its own interests first and foremost. That is because the OIG derives much of its influence and authority from the fact that its findings are published and made widely available. Without the leverage offered by publication, the OIG investigative and oversight function will only be weakened.

COURTS REBUFFS BUSH ON DETAINEES

The President does not have the legal authority to unilaterally detain an American citizen in the United States as an "enemy combatant," a federal appeals court ruled yesterday, in a significant rebuke to the Bush Administration arising from the case of suspected terrorist Jose Padilla.

"Padilla's detention was not authorized by Congress, and absent such authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat," the second circuit court of appeals ruled. See:

The Justice Department said it would appeal the decision. See:

Another appeals court ruling concluded that detainees held under American jurisdiction in Guantanamo have a legal right to challenge the basis for their detention.

"Even in times of national emergency--indeed, particularly in such times--it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike," the ninth circuit court of appeals declared.

"Here, we simply cannot accept the government's position that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement." See:

A Justice Department statement in response is posted here:

CRS ON DETAINEES AND THE LAW

The Congressional Research Service has prepared a number of informative reports pertaining to the legal status of detainees in the war on terrorism, including these:

"Treatment of 'Battlefield Detainees' in the War on Terrorism" by Jennifer Elsea, April 11, 2002:

"Military Tribunals: The Quirin Precedent" by Louis Fisher, March 26, 2002:

"Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions" by Jennifer Elsea, December 11, 2001:

As may have been previously mentioned, direct public access to these and other CRS reports is not authorized by Congress.

NEW PRESIDENTIAL DIRECTIVES ON HOMELAND SECURITY

President Bush issued two new "homeland security presidential directives" (HSPDs) this week that would provide a framework for protecting critical infrastructure from terrorist attack and improving emergency preparedness.

HSPD-7 on "Critical Infrastructure Identification, Prioritization, and Protection" is posted here:

HSPD-8 on "National Preparedness" is available here:

The premise of the new directives is that "Terrorists seek to destroy, incapacitate, or exploit critical infrastructure and key resources across the United States to threaten national security, cause mass casualties, weaken our economy, and damage public morale and confidence."

It is noteworthy that the threat which propels this and other Bush Administration policies is "terrorism," a nearly metaphysical entity, not an identifiable terrorist organization with defined capabilities and intentions that could be countered or defeated.

Democratic members of Congress criticized the Bush Administration for not proceeding far enough, fast enough to combat the asserted threat to homeland security.

SECRET SERVICE AIRBRUSHES AERIAL PHOTOS

Aerial imagery of selected government buildings that is made publicly available by the U.S. Geological Survey is being electronically distorted at the request of the U.S. Secret Service. The USGS imagery is widely used by MapQuest and other online services.

Images of the White House and the Congress, but not the Supreme Court, have been modified to obscure details that could previously be discerned.

The story was reported in "Secret Service airbrushes aerial photos" by Kevin Poulsen, SecurityFocus.com, December 17:

Before and after photos of the modified images were presented by John Young of Cryptome.org here:

AAAS ON SCIENCE AND SECURITY

Science and national security in the post-9/11 environment is the urgent subject of a new web site presented by the American Association for the Advancement of Science.

"The site provides a contact page for individuals to report ways in which they or their colleagues have been affected by post-9/11 security policies. It also provides overviews of five major security-related issues facing the scientific community and links to related projects at other organizations," according to project director David G. Cooper. See:

DOJ ON FOIA EXEMPTION 3

Exemption 3 of the Freedom of Information Act permits federal agencies to withhold information that has been specifically exempted from disclosure in another statute.

Last year, agencies invoked nearly 125 such statutes to withhold information under FOIA exemption 3, according to a new report of the Justice Department's Office of Information and Privacy.

See "Agencies Rely on Wide Range of Exemption 3 Statutes," December 16:

BUSH ADMINISTRATION SCRUBS THE WEB

The Bush Administration has repeatedly altered government web sites to eliminate items that it considers politically or ideologically distasteful.

In a gem of a news story, Dana Milbank of the Washington Post reported that the U.S. Agency for International Development (AID) had deleted the transcript of an ABC Nightline interview with AID administrator Andrew S. Natsios last April in which he said the reconstruction of Iraq would cost taxpayers no more than $1.7 billion, a gross underestimate.

See "White House Web Scrubbing," Washington Post, December 18:

AID officials told the Post that the page was removed because ABC News was going to charge for it.

But the exemplary Milbank contacted ABC News, which said that wasn't true.

A copy of the web page containing the Natsios interview that was deleted from the US AID web site is here:

Other instances of "political" modifications to official web sites were cited recently in the House Government Reform Minority report on "Politics and Science in the Bush Administration" available here:

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

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