from the FAS Project on Government Secrecy
Volume 2008, Issue No. 56
June 9, 2008

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In a report to the National Archives released last week, the Defense Intelligence Agency (DIA) said it could not locate a recording of the final interrogation of Jose Padilla, the American citizen who was designated an enemy combatant and later convicted of conspiracy to commit murder.

The missing Padilla interrogation video was first reported in February 2007 by Michael Isikoff and Mark Hosenball in Newsweek. Their story triggered a legal inquiry by the National Archives, which advised DIA that the disposal of such a record is "not authorized."

DIA reported back to the National Archives in December 2007 in a terse four-paragraph letter concerning the loss.

Unlike the case of the CIA's reported destruction of videotaped interrogations of al Qaeda suspects, DIA did not say that the Padilla tape was deliberately destroyed, only that it could not be found.

A government official with some knowledge of the events told Secrecy News that he "heard" the Padilla DVD had been transferred from DIA to CIA, which may have destroyed it. But there is no independent evidence of that, and it may not be true.

What is true is that DIA and the National Archives failed to establish exactly how the loss of the Padilla interrogation recording actually occurred.

An agency that unlawfully or accidentally destroys a record is required by regulation (36 C.F.R. 1228.104) to provide "a statement of the exact circumstances surrounding the alienation, defacing, or destruction of the records."

But in its report, DIA did not explain "the exact circumstances" of the loss and the National Archives did not press the matter.

The exchange of correspondence between DIA and the Archives regarding the Padilla interrogation video was released to the Federation of American Scientists last week under the Freedom of Information Act.


Rep. Jane Harman (D-CA) and several colleagues last week introduced a bill that endorses and builds upon the recent White House policy statement on "controlled unclassified information" (CUI), which is information that though not classified is subject to restricted access (Secrecy News, May 28).

Although entitled "The Improving Public Access to Documents Act," it is far from clear that the new bill would serve that purpose. Rather, it would "require the Secretary of Homeland Security to develop and administer policies, procedures, and programs to promote the implementation of the Controlled Unclassified Information Framework."

While well-intentioned, the bill seems premature at best.

From Secrecy News' perspective, it is tactically unwise to lock into statute an executive branch "framework" that still remains largely undefined and that may be subject to significant modification in the course of its projected five-year implementation period. The CUI Office at the National Archives that is supposed to develop the implementing regulations referenced in the bill does not even have its own funding this year, and has also missed the funding cycle for next year.

Among other questionable features (and some positive ones), the bill regrettably endorses the executive branch view of the Freedom of Information Act as the proper channel for public access to agency information on homeland security and related topics.

Thus, the bill says, "The Department [of Homeland Security] should start with the presumption that all homeland security information that is not properly classified, or marked as controlled unclassified information and otherwise exempt from disclosure, should be shared with the public pursuant to section 552 of title 5, United States Code (commonly referred to as the `Freedom of Information Act')."

This is not a "presumption" -- disclosure of non-exempt information pursuant to FOIA is already required by law -- and it would not "improve public access." To the contrary, by presenting disclosure under FOIA as the primary alternative to classification or control, the bill would place an impossible burden on the FOIA process, and would diminish agency responsibility to unilaterally disclose homeland security information that has not been formally requested.

A hearing on the new bill will be held before the House Homeland Security Subcommittee on Intelligence on June 11.


The White House last week issued a National Security Presidential Directive (NSPD-59) to provide a framework for government agencies to collect, maintain and share biometric data such as fingerprints and other physiological or behavioral characteristics of suspected terrorists.

"The ability to positively identify those individuals who may do harm to Americans and the Nation is crucial to protecting the Nation," the directive states.

"Many agencies already collect biographic and biometric information in their identification and screening processes. With improvements in biometric technologies, and in light of its demonstrated value as a tool to protect national security, it is important to ensure agencies use compatible methods and procedures in the collection, storage, use, analysis, and sharing of biometric information."

"Through integrated processes and interoperable systems, agencies shall, to the fullest extent permitted by law, make available to other agencies all biometric and associated biographic and contextual information associated with persons for whom there is an articulable and reasonable basis for suspicion that they pose a threat to national security."

"The Director of the Office of Science and Technology Policy," who hasn't been heard from much lately, "shall coordinate executive branch biometric science and technology policy."

The new directive on "Biometrics for Identification and Screening to Enhance National Security" was issued on June 5, 2008 as both National Security Presidential Directive 59 and Homeland Security Presidential Directive 24.


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

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