COURT ORDERS FBI TO RELEASE WITHHELD INFORMATION
As often happens, the Federal Bureau of Investigation invoked national
security a few years ago to justify withholding certain information from a
Freedom of Information Act requester named Deirdre McKiernan Hetzler.
But as rarely happens, a court last month critically assessed the FBI
national security claim and ordered the Bureau to release some of the
withheld information.
Ms. Hetzler, acting pro se (i.e. without an attorney), had requested
records concerning her deceased father, who had once been the subject of an
FBI investigation. The FBI provided her with some records but withheld
others, stating that they remained classified in order to protect an
intelligence activity.
But after reviewing the withheld records in camera, Judge Michael A.
Telesca of the Western District of New York determined that some of the
information contained in them was not exempt from disclosure under FOIA.
The FBI had been withholding it under the FOIA's national security
exemption even though it was actually unclassified or declassified.
"The Court is not persuaded that Defendants [the FBI and the Justice
Department] have carried their burden of showing that disclosure of this
information could cause serious damage to national security," Judge Telesca
wrote in a September 6, 2012 opinion. He therefore ordered the FBI to
reprocess the request and to release the information to Ms. Hetzler as
specified in his ruling.
http://www.fas.org/sgp/jud/hetzler.pdf
The Court here acted as a check on the normally unconstrained official
tendency to classify and withhold information. That is what judicial
review is supposed to do, though it doesn't happen very often.
Earlier this year, Judge Richard W. Roberts of the DC District ordered the
U.S. Trade Representative to release a classified document to the Center
for International Environmental Law (CIEL) because he found that the
document was not properly classified.
The USTR "failed to provide a plausible or logical explanation of why
disclosure of [the document] reasonably could be expected to damage United
States foreign relations," he wrote in his opinion ordering release.
http://www.fas.org/blog/secrecy/2012/03/not_logical.html
The government has appealed that ruling. Judge Roberts "inappropriately
second-guessed the Executive's expertise in the uniquely sensitive area of
foreign relations," the government said in its September 17 appeals brief.
http://www.fas.org/blog/secrecy/2012/09/ciel_appeal_brief.html
No, on the contrary, CIEL responded in its own brief to the appeals court
this week, Judge Roberts did exactly what the FOIA requires.
"A district court reviewing [an agency claim that a document is classified
and exempt from disclosure] must give substantial weight to the agency's
explanations, but must not simply acquiesce in the agency's determination,"
CIEL attorneys wrote.
http://www.fas.org/sgp/jud/ciel/102412-app.pdf
"Congress explicitly 'stressed the need for an objective, independent
judicial determination, and insisted that judges could be trusted to
approach the national security determinations with common sense, and
without jeopardy to national security'," they wrote, citing prior FOIA case
law.
The document that is being contested in this case is a one-page memorandum
that presents the US government's legal interpretation of the phrase "in
like circumstances."
The government says that because the document was shared confidentially
with other governments as part of a (now-concluded) free trade negotiation,
its involuntary disclosure would undermine the confidentiality of
diplomatic negotiations.
Judge Roberts said this argument was not compelling "since the United
States would be revealing its own position only" and would not be
disclosing foreign government information that had been provided in
confidence.
Indeed, "There is no expectation that a government is required to keep its
own negotiating positions confidential from its own citizens," said former
US trade negotiator Daniel Magraw in a statement cited by CIEL.
CIEL said that "Under USTR's interpretation, USTR could withhold any
document -- even a document whose release would otherwise cause absolutely
no harm -- simply by entering into a confidentiality arrangement and
arguing that the breach of that arrangement would undermine trust and cause
damage to US foreign relations; the withholding would be insulated from
judicial review."
"Fortunately, FOIA limits what an agency can make confidential," CIEL
wrote in its appeals brief.
A date for oral argument before the DC Circuit Court of Appeals has not
yet been set.
AN UPDATED CATALOG OF ARMY WEAPON SYSTEMS
The U.S. Army has just published the 2013 edition of its annual Weapon
Systems Handbook, which is filled with updated information on dozens of
weapon systems, the military contractors who produce them, and the foreign
countries that purchase them.
http://www.fas.org/man/dod-101/sys/land/wsh2013/index.html
So one learns, for example, that the RQ-11B Raven Small Unmanned Aircraft
System is marketed to Denmark, Estonia, Lebanon, and Uganda, while the
United States sells artillery ammunition both to Israel and to Lebanon.
An appendix provides an informative breakdown of military industry
contractors by weapon system and by the state where the contractor is
located.
http://www.fas.org/man/dod-101/sys/land/wsh2013/app.pdf
"The systems listed in this book are not isolated, individual products.
Rather, they are part of an integrated Army system of systems designed to
equip the Army of the future to successfully face any challenges,"
according to the Handbook introduction.
"After 10 years of combat, today's Army is significantly more capable than
the Army of 2001. As we draw down from Iraq and Afghanistan, we must remain
flexible, adaptable, and agile enough to respond and meet the needs of the
combatant commanders."
"Our objective is to equip and maintain an Army with the latest most
advanced weaponry to win and return home quickly."
_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@fas.org
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twitter: @saftergood
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