Inside the Navy
Copyright Inside Washington Publishers
Reprinted with Permission
December 2, 2002

NAS Study Shows Messy Reality Tied To Balancing Security, Openness

by Christopher Castelli

Before a National Academy of Sciences' study of non-lethal weapons science and technology was published Nov. 4, its classification review became a yearlong tug of war between NAS and a Defense Department office, revealing just how difficult and contentious decisions about releasing government information can be following Sept. 11.

NAS sought for months to release the report, but was repeatedly rebuked by DOD's Joint Non-Lethal Weapons Directorate as the classification review dragged on. There are conflicting opinions of that review, including whether it was used improperly to suppress NAS' criticism of DOD's non-lethal weapons program.

Ironically, the Sunshine Project, a watchdog group, has criticized NAS for withholding many other documents related to the study, ranging from briefings on non-lethal weapons to published news clippings. NAS says it properly blocked access to the so-called public access file to conduct a security review. But the Sunshine Project argues NAS violated the open government law known as the Federal Advisory Committee Act. A legal expert contacted by Inside the Navy shares the watchdog's view, arguing NAS failed to balance the need for both security and openness with its handling of the public access file.

Marine Corps Col. George Fenton, who retired Oct. 9 as director of the Pentagon's Joint Non-Lethal Weapons Directorate and will retire from the service Jan. 1, told Inside the Navy the classification review of the report was protracted because NAS repeatedly refused to delete what he considered classified information in the report's drafts.

"What they wrote a year ago -- they had classified matters in it," said Fenton. "And members of their board had been read in on some classified matters. And as scholarly as they are -- and they are a fine, august body of people -- their initial draft and subsequent drafts continued to have classified matters in them."

But NAS spokesman Bill Skane accused Fenton of prolonging the classification review because the report criticized Fenton's efforts to develop non-lethal weapons for the U.S. military. Fenton "seemed to be determined not to have the report come out," Skane told ITN.

"We really believed he was determined to have the report not come out because it was critical of his command," Skane said. The report is not critical in a personal way, but concludes the Pentagon non-lethal weapons program "could take a wider view of the field [and] use other resources than they were currently using," Skane said. And though sponsors of NAS studies do not usually get to see such reports long in advance, Fenton did because of the classification process, he said. "It was clear he was unhappy, Skane added. He was unhappy with us in conversations we had with him all along and just kept on telling us it was going to stay in classification with no end date. So, draw your own conclusion."

"I think that's hogwash," Fenton said of Skane's accusation. "The only thing that I had a real legitimate concern about were the classified matters."

He said he thought NAS took "liberties" by offering suggestions on how the directorate should do its job when the committee did not receive any presentations on the directorate's processes. And he admitted being "miffed" by the academy's decision to focus on the processes of the directorate, as opposed to technologies, but said that could not keep the report from being published. "They were chartered and asked to focus on technologies," said Fenton. "So that was a rub, but that was a secondary rub. The principle rub, my real heartburn, was on the classified matters."

Skane said Fenton kept telling NAS he had the authority to determine whether the report should be classified, when he did not have that authority. Fenton denied that charge, but confirmed that the joint non-lethal weapons directorate did not, and does not have what is called "original classification authority." An OCA is an individual authorized either by the president, or by agency heads or other officials designated by the president, to classify information in the first instance.

"No, my point to them was I am not a classification authority and you've got to take [the report] to one," Fenton insisted. But Fenton added that he was responsible for "recognizing matters that were classified" in the report. And he said he repeatedly told NAS that certain passages in the report were classified and had to be removed prior to publication.

By June, NAS turned to the Office of Naval Research for assistance in reviewing and ultimately publishing the report, Skane said. ONR, which has original classification authority, found the report to be unclassified shortly after Fenton retired in October, said Skane. Fenton said Rear Adm. Jay Cohen, ONR's chief, intervened by urging parties to "get on with it." After that, things moved quickly, Fenton said. "I was very glad to see that," he said.

Once involved, ONR decided that the report could be published "as is" relatively quickly, within a few months, said Skane. "We just wish that had happened a year before," he added.

Without commenting on specifics, Fenton said ONR agreed with the directorate that some information in the report was classified and needed to be declassified if it was going to be released. However, Fenton added he had not read the final report and could not speak to what was left in and out. "But I have complete confidence in the system," he said.

Collision with FACA?

But beyond the report itself, other supposedly public documents related to the non-lethal study, which were supplied to NAS for background by Fenton's office, have been tied up in a security hold imposed earlier this year by NAS.

Controversy over the public access file began earlier this year after the Sunshine Project requested a list of the contents of the file. At the time, NAS obliged with a lengthy list. But as soon as that group, which opposes chemical weapons, requested particular documents from the file, NAS made the decision to block access to the entire file at Fenton's request. Had the Sunshine Project not posted the lengthy list on its Internet site, there might not have been any surviving public index of this file's complete or near-complete content.

Under the Federal Advisory Committee Act, which is designed to provide the public a window into the deliberations of government advisory committees, NAS is required to provide the public access to documents it receives for studies, provided they are not exempt from disclosure under the Freedom of Information Act. The law does not require the public to file a FOIA request to inspect such documents. Herbert Fenster, an attorney who specializes in FACA, told ITN that NAS almost certainly violated FACA and FOIA by delaying or actually blocking access to the documents. Access under FACA is intended to be contemporaneous with the conduct of the advisory committee's work, he said. Absent this prompt access, an important reason for FACA is lost, Fenster said.

"That reason for the statute is to insure that the work of a [federal advisory committee] does not go on in a vacuum but instead is made subject to 'sunshine' concepts that are built into the FACA," explained Fenster. The Sunshine Project has also accused NAS of violating FACA.

Fenton's office and NAS included published news clippings among the public access file documents withheld for most of 2002.

"It totally undercuts the credibility of their disclosure policy," said Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy. Everyone understands the need to withhold some information but it is a "betrayal of the public trust" when that authority is employed unnecessarily, he told ITN.

These news stories included two Inside the Navy articles -- one based on an admiral's open testimony to Congress -- and articles by other publications, including The Washington Post. When ITN visited NAS this summer to inspect the file, NAS said copies of ITN's articles in the file were too sensitive to be reviewed. ITN immediately brought the matter to Skane's attention. But only after the non-lethal study's publication last month did NAS send a Nov. 12 letter to the Marine Corps and ONR that declared such obviously public documents would no longer be withheld for security reasons.

"I don't know, I can't comment on that one," Fenton said when told a published ITN article was only recently cleared by the security review. "But the point is we did the right thing."

Last month, Skane said NAS was preoccupied earlier this year with getting the non-lethal report published. Lifting the restrictions on the public access file was a lesser priority, he explained.

NAS officials deny they violated FACA.

"We really don't think we have because we believe we have demonstrated a good-faith effort to be able to do both," said Skane. He and NAS security director Kevin Hale told ITN that NAS was required to withhold and review each document in the public access file by a DOD contract signed by Fenton that commissioned NAS to begin the study in 2000. Because NAS was given access to classified information when performing the study, the contract said the Pentagon would review the report and all related documents before they were released to ensure nothing classified was published. Hale and Skane said Hale decided NAS would follow DOD's contract to the letter. The Marine Corps was not fully aware of or sensitive to the rules under which NAS operates, said Skane, who accused Fenton of making the public access file "a chess piece" in the struggle over the report's classification.

"But I really do feel we honestly were caught between not just FACA and the language in the contract but also this whole business about trying to be responsible," Skane continued. "It was less important to us that the documents might have been delayed in the release than that we really didn't release something that potentially could be usable by somebody. And I think we did consciously make that tradeoff."

Some documents were marked "export control" and others had markings that NAS could not decipher to know if they meant classified or unclassified, he said. "We believe we're trying to follow all the laws," he said. "Because the unfortunate assumption to make here is that we're only subject to FACA. We are subject to FACA -- that's the law written for this institution -- but we're also subject to FOIA and we're also subject to export control laws."

Fenster disputed the notion that NAS took a reasonable approach to fulfilling FACA obligations. He called the very concept of such a contract "absurd." According to NAS' Internet site, the academy and its associated organizations are private, not governmental, organizations. But Fenster argued NAS is essentially part of the executive branch and the contract should be viewed as an agreement between two parts of the executive branch. The notion that such a contract could justify delays in providing the documents turns the FACA statute on its head, he argued.

Balancing security and openness

Fenton told ITN he asked for the public file to be withheld and reviewed in keeping with White House Chief of Staff Andrew Card's March 19 memo on safeguarding information regarding weapons of mass destruction and other sensitive documents related to homeland security.

"Post 9/11, given I wanted to stay in the spirit of the guidance provided by the White House, and particularly in terms of national security, the prudent thing to do, the patriotic thing to do, was just to stop all [work] on everything and go [review] every single document and give it the critical eye," said Fenton. "I owe that to you as an American citizen and to everybody else." Fenton said he did not want to release documents that would give terrorists any ideas for weapons that could be used against the United States.

At a Nov. 4 National Press Club forum about freedom of information issues, Daniel Metcalfe, co-director of the Justice Department's information and privacy office, defended the notion of safeguarding information. Safeguarding particular information does not necessarily remove it from the possibility of disclosure, he said.

But in an Oct. 18 essay posted on the academy's Internet site, NAS President Bruce Alberts took aim at the White House's push to withhold sensitive but unclassified documents, arguing that criteria is too vague to be effective. The essay is co-signed by the presidents of the National Academy of Engineering and the Institute of Medicine.

"Restrictions are clearly needed to safeguard strategic secrets; but openness also is needed to accelerate the progress of technical knowledge and enhance the nation's understanding of potential threats," the three write.

A successful balance between security and openness demands clarity in the distinctions between classified and unclassified research, the presidents argue. "We believe it to be essential that these distinctions not include poorly defined categories of 'sensitive but unclassified' information that do not provide precise guidance on what information should be restricted from public access," the essay states. "Experience shows that vague criteria of this kind generate deep uncertainties among both scientists and officials responsible for enforcing regulations. The inevitable effect is to stifle scientific creativity and to weaken national security."

And in another essay published this summer on the academy's Internet site, Aftergood criticized Card's guidance as vague.

"This is a problem, because agencies may have many reasons for considering information sensitive that have nothing to do with national security," Aftergood writes.

When NAS blocked access to the public access file earlier this year, a brouhaha erupted between the Sunshine Project and NAS. This dispute recently caught the attention of congressional investigators, ITN has learned. A source tracking the issue said the House Government Reform committee summoned members of the Pentagon's joint non-lethal weapons directorate to Capitol Hill Sept. 26. The committee is exploring questions about public access to documents as well as whether the U.S. military should develop "calmative" chemical weapons meant to incapacitate people, the source said. Fenton was not present at the meeting, but his successor was, said the source.

Though NAS released some documents in the public access file in response to the Sunshine Project's requests earlier this year and others Nov. 12 because the documents were deemed clearly public, the majority have remained restricted beyond the report's Nov. 4 publication. More may soon be released due to a Nov. 12 letter NAS sent the Marine Corps and ONR urging the joint non-lethal weapons office to resolve outstanding questions about whether particular documents are exempt from disclosure under FOIA. -- Christopher J. Castelli