SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 111
December 23, 2003

CRS WARNS AGAINST PUBLIC ACCESS

Pending legislative proposals to permit broad public dissemination of Congressional Research Service reports would interfere with the agency's ability to support congressional needs and would compromise its effectiveness, according to an internal CRS memorandum on public access to CRS products.

Direct public access to CRS reports would place CRS "in an intermediate position responding directly to constituents" and thereby "threaten the dialog on policy issues between Members and their constituents that was envisioned by the Constitution."

The CRS memo also suggests that public access could place at risk its constitutionally guaranteed protections on speech and debate.

Furthermore, wholesale dissemination of CRS reports "would inevitably generate a significant number of comments, questions, and concerns from the public," thereby resulting in a "reduction in service to Congress," the memo warned.

A copy of the memo was obtained by Secrecy News. See:

Most of the arguments presented in the CRS memo are refuted by the record of the U.S. General Accounting Office, another congressional support agency that publishes reports online daily with no adverse impact on performance or productivity.


CRS REPORT ON ENEMY COMBATANTS

A recent Congressional Research Service report provides additional background to the current controversy over how to deal with individuals such as Jose Padilla, who are American citizens but are also deemed by the President to be "enemy combatants."

See "Detention of American Citizens as Enemy Combatants" by Jennifer Elsea, Congressional Research Service, January 30, 2003:

Direct public access to this report has not been authorized by Congress.


THE THREAT OF THE UNALIGNED TERRORIST

"If you think the terrorist threat stems from organized groups, I think you miss the problem we see today," emailed M.E. Bowman, deputy general counsel of the Federal Bureau of Investigation, in response to a remark made in the previous issue of Secrecy News.

"The 9/11 hijackers were not an organization. Nor did they associate themselves overtly with al Qaeda, which sponsored them. And this proves the point!" Mr. Bowman wrote in a recent article.

"The larger threat is not al Qaeda, but the person who, while otherwise leading a normal life somewhere in the world, decides to become a terrorist."

The basis for this judgment, and its implications, were explored in "Some-Time, Part-Time and One-Time Terrorism" by M.E. Bowman, published in Intelligencer: Journal of U.S. Intelligence Studies, a publication of the Association of Former Intelligence Officers (AFIO), Winter/Spring 2003.

A copy is posted here, with the kind permission of AFIO:


DTRA SHIFTS GROUND ON FOIA POLICY

Attorney General Ashcroft's October 2001 memorandum on Freedom of Information Act policy does not provide any new legal authority to withhold requested information, the Defense Threat Reduction Agency conceded in response to a FOIA appeal last week.

"Our reference to the Attorney General's memorandum in this respect was an error," a DTRA official wrote.

The Agency is still weighing whether or not to release the requested document, an unclassified report on lessons learned from the 2001 anthrax attacks (SN, 12/15/03). See the latest DTRA letter here:


THE POLITICS OF EXECUTIVE PRIVILEGE

Disputes between the executive and legislative branches over congressional access to information are the subject of an excellent new volume by Louis Fisher, a scholar of American government at the Congressional Research Service, entitled "The Politics of Executive Privilege."

Fisher explores the principles and the profound stakes involved in such disputes, and the diverse forms that they have taken over the years.

"Untidy as they are, political battles between Congress and the executive branch are generally effective in resolving executive privilege disputes," he concludes. "Courts play a minor role, which is good for the judiciary and good for the country."

He adds an observation that is suddenly timely, because of the Supreme Court's announcement last week that it would hear the Bush Administration's appeal for secrecy in connection with the Vice President's Energy Task Force:

"The Politics of Executive Privilege" by Louis Fisher was published this month by Carolina Academic Press. For more information, see:


GOVERNMENT SECRECY EXPANDS UNDER BUSH

"The [Bush] administration has been unusually successful keeping its policy deliberations out of public view, and millions of government documents -- including many historical records previously available -- have been removed from the public domain," observes Dana Milbank in the Washington Post today.

See "Under Bush, Expanding Secrecy":

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

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