SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 100
October 26, 2005

WHITE HOUSE ISSUES ORDER ON INFORMATION SHARING

In response to intelligence reform legislation enacted last year, President Bush signed an updated executive order yesterday directing agencies to strengthen the sharing of information on terrorist threats.

Federal agencies shall "give the highest priority to ... the interchange of terrorism information among agencies [and] between agencies and appropriate authorities of State, local, and tribal governments, and between agencies and appropriate private sector entities," the President ordered.

See executive order 13388, "Further Strengthening the Sharing of Terrorism Information to Protect Americans," October 25, 2005:

Section 1016 of the Intelligence Reform and Terrorism Prevention Act of 2004, which prompted the new executive order, identified overclassification, among other things, as an obstacle to information sharing.

The Act called upon the President to require agencies "to promote a culture of information sharing by reducing disincentives to information sharing, including over-classification of information and unnecessary requirements for originator approval, consistent with applicable laws and regulations" (sec. 1016(d)(3)). See:

The new order does not explicitly address overclassification. But it references a 2004 executive order that instructed agencies -- to little visible effect -- to "minimiz[e] the applicability of information compartmentalization systems to terrorism information," and to "creat[e] unclassified versions for distribution whenever possible."

See executive order 13356, "Strengthening the Sharing of Terrorism Information To Protect Americans," August 27, 2004 (revoked by the latest order):

"Information sharing should not be impeded because of outdated classification rules," said Zoe Baird of the Markle Foundation at a hearing of the House Intelligence Committee on October 19.

"Furthermore, we must work to extinguish the belief that those who collect information own it," she said.

"This information sharing construct is a very important thing," said Adm. William O. Studeman at the same hearing.

"I don't believe it could be done without a zero-based look at security," he said. "Security reform needs to be looked at."

SENATE BILL WOULD INCREASE BIODEFENSE SECRECY

A rapidly moving bill introduced in the Senate last week would establish a new Biomedical Advanced Research and Development Agency (BARDA) that would be categorically exempt from disclosure under the Freedom of Information Act (FOIA).

Ordinary FOIA exemptions place specific categories of information beyond the reach of FOIA.

But the audacious new BARDA exemption would nullify the applicability of the FOIA to an entire agency.

"Information that relates to the activities, working groups, and advisory boards of the BARDA shall not be subject to disclosure under section 552 of title 5, United States Code [i.e. the FOIA], unless the Secretary or Director determines that such disclosure would pose no threat to national security," the bill states.

(The FOIA, of course, already includes an exemption for properly classified national security information.)

"Such a determination shall not be subject to judicial review," the bill adds, in an implicit acknowledgment that the proposed secrecy policy might not survive independent scrutiny.

The bill, co-sponsored by Senator Richard Burr (R-NC) and Majority Leader Bill Frist, among others, was introduced on October 17 and promptly reported out of Committee on October 24. It now awaits action by the full Senate.

See S. 1873, a bill "to prepare and strengthen the biodefenses of the United States against deliberate, accidental, and natural outbreaks of illness":

"Even intelligence agencies and the Defense Department do not have blanket exemptions from FOIA," noted Nick Schwellenbach of the Project on Government Oversight.

"Exempting BARDA would mean congressional and public oversight of the agency and its important activities would be severely curtailed," according to a statement on the POGO blog here:

"Secrecy is inappropriate when developing [drugs and other] countermeasures for natural infectious disease," wrote Alan Pearson and Lynn Klotz of the Center for Arms Control and Non-Proliferation in a letter to Senators.

"Robust and effective countermeasure development can take place only in a climate of timely and free exchange of materials and information," they wrote. See:

PENTAGON CLEARANCE FOR JUDITH MILLER QUESTIONED

Senator Byron Dorgan, speaking on the Senate floor yesterday, pondered the rules governing authorized access by reporters to classified information.

His reflections were prompted by an assertion from the New York Times' Judith Miller that she had held a security clearance for Access to classified information while embedded with a military unit in Iraq. That assertion was later modified to indicate that Ms. Miller had signed some kind of non-disclosure agreement.

"How can you give a nondisclosure form to a reporter and then show them secret or top secret material? Take a look at the law, which I will read tomorrow in the Senate. That is not what is allowed," Senator Dorgan said. See his remarks here:

CRS ON THE GREAT MISSISSIPPI FLOOD OF 1927

Seeking to glean lessons for emergency management from disasters of the past, a new report from the Congressional Research Service examines the levee-busting Mississippi river flood of 1927, and the government's response to it.

The CRS found that granting largely unchecked authority to then-Commerce Secretary Herbert Hoover "enabled the relief effort to be carried out expeditiously and creatively."

But that same absence of oversight meant that "when local and state relief workers behaved illegally, they were not held accountable."

"Furthermore, the concentration of power in a single set of hands enabled Secretary Hoover to undertake inadvisable actions with nearly no constraints."

See "Disaster Response and Appointment of a Recovery Czar: The Executive Branch's Response to the Flood of 1927," October 25, 2005:

Another recent CRS report, which addresses a subject of some hyperbole, is "Terrorist Capabilities for Cyberattack: Overview and Policy Issues," October 20, 2005:

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

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