Pentagon Seeks Greater Immunity from Freedom of Information Act

Pentagon Seeks Greater Immunity from Freedom of Information Act


Pentagon Seeks Greater Immunity from Freedom of Information Act
by Michelle Chen (bio)
Dismissing the Freedom of Information Act as a hindrance to protecting national security, the military is asking Congress for more authority to withhold information from the public -- a move critics consider a leap on the slippery slope of secrecy.

May 6, 2005 - The Department of Defense is pushing for a new rule that would make it easier for the Pentagon to withhold information on United States military operations from the public.

The provision, proposed by the Defense Intelligence Agency (DIA) in the 2006 National Defense Authorization Act, would render so-called "operational files" fully immune from requests under the Freedom of Information Act, the main mechanism by which watchdog groups, journalists and individuals can access federal documents.

Open government advocates oppose the move, arguing that the proposed exemption is worded so vaguely that it could potentially enable the Pentagon to seal off large amounts of information, including evidence of abuse and misconduct, without proper justification.

Steven Aftergood, director of the Project on Government Secrecy, a research organization focusing on national intelligence agencies, said that FOIA exemption policies, which several other agencies have already obtained, fold into a growing thicket of government secrecy by handing officials "another tool with which they can obfuscate and decline to respond."

The DIA, which employs some 7,500 people in the US and abroad, is a major component of the federal government's intelligence system, supplying information on military affairs and intelligence gathering to the secretary of defense, joint chiefs of staff, and other official bodies.

Since declaring the "war on terror," the Bush administration has, through various policy directives, enhanced the government's ability to limit public access to information, Secrecy is maintained through the classification of documents as well as other, less formal methods of protecting "sensitive" security-related information.

The Freedom of Information Act (FOIA) process, in which information requests from the public are systematically reviewed by the staff of the petitioned agency, has become an increasingly popular way to unearth government documents. The exemption that the DIA has requested would allow the agency to circumvent the entire FOIA system by protecting all so-called "operational files" from even being considered for release.

"If it falls in this category … it's over before it begins," explained Aftergood.

Under the current proposal, once officials designate a file as FOIA-exempt, there will essentially be no opportunity to remove the exemption until ten years later, when officials conduct an internal "decennial review" of the file's "public interest" value. Critics charge that this review protocol is inefficient and lacks adequate oversight mechanisms to ensure accountability.

The DIA's proposal, which mirrors an earlier request that failed to pass Congress in 2000, is modeled after a similar protection for "operational files" that the Central Intelligence Agency (CIA) has used since 1984. The CIA's blanket exemption was originally intended to reduce the bureaucratic burden of processing FOIA requests in the operational files category, which were almost always classified and therefore not publicly available on any basis. Similarly, in explaining its original exemption request to Congress, the DIA complained that the review of FOIA requests destined for rejection was "consuming many man-hours in fruitless effort."

After the September 11 terrorist attacks, several other national security-related agencies enacted comparable FOIA exemptions. All of these rules, including the original CIA statute, have faced criticism for being too broad.

According to the text of the provision proposed in the authorization bill, an "operational file" could be any information related to "the conduct of foreign intelligence or counterintelligence operations or intelligence or security liaison arrangements or information exchanges with foreign governments or their intelligence or security services."

Rick Blum, director of OpenTheGovernment.org, a public interest coalition advocating government transparency, reads the bureaucratic language of the bill as a green light for the agency to thwart a wide array of legitimate information requests. FOIA exemptions, he said, tend to be strategically worded to "leave things as vague as possible, leave as much up to the agencies as possible. And those kinds of things only invite abuse."

Critics say the FOIA exemption would impact both historical and contemporary investigations into international military affairs, especially those that could shed light on human rights violations.

In response to the DIA's initial exemption proposal in 2000, the National Security Archive, a research center based at George Washington University focusing on US intelligence operations, compiled a database of FOIA-requested DIA documents to highlight the public importance of historical documents that could qualify as "operational files" under the rule. These ranged from reports on state-sponsored human rights violations against rebels in Guatemala during the 1990s, to intelligence on alleged weapons technology transfer between Israel and China in 1992.

Yet opponents of the rule are more alarmed that the exemption could extend to current US military and intelligence operations, becoming another barrier for organizations investigating human rights abuses tied to ongoing "counter-terrorism" efforts.

The rule could, for instance, frustrate the work of the American Civil Liberties Union (ACLU) and other organizations, which have relied on the Freedom of Information Act to uncover more than 30,000 documents on the US military's involvement in the torture and mistreatment of foreign detainees in Afghanistan; Guantánamo Bay, Cuba; and Iraq, including the Abu-Ghraib prison scandal.

Several key documents that have surfaced in the advocacy organization's expansive research originate from DIA officials, including a 2004 memorandum presenting evidence that US military interrogators brutalized detainees in Baghdad, as well as a report describing the abuse of Iraqi detainees as violations of international human rights law.

According to Jameel Jaffer, an ACLU attorney involved with the ongoing torture investigations, "If the Defense Intelligence Agency can rely on exception or exemption from the FOIA, then documents such as those that we obtained this last time around will not become public at all." The end result of such an exemption, he told The NewStandard, is that "abuse is much more likely to take place, because there's not public oversight of Defense Intelligence Agency activity."

Jaffer added that because the DIA conducts investigations relating to other national security-related agencies, documents potentially covered by the exemption could contain critical evidence of how other parts of the military operate as well.

The ACLU recently battled the FOIA exemption rule of the CIA in a lawsuit over the agency's attempt to withhold information concerning alleged abuse of Iraqi detainees. The CIA's defense centered on the invocation of the exemption, and although a federal judge ultimately overrode the rule, Jaffer cited the case as evidence of "exemption creep" -- the gradual stretching of the law to further shield the agency from public scrutiny.

In pending litigation, the ACLU is also challenging the Defense Department over its denial of the group's FOIA request for torture-related documents. The department has attempted to justify its denial using statutes in the current FOIA law that allow information to be withheld to protect national security.

Jaffer believes that more exemptions for the agency would strengthen the bureaucratic resistance civil libertarians already face in probing government misconduct, and would increase their reliance on the courts to force the release of information. In a national security climate that permits and even encourages non-transparency, he commented, "it's virtually impossible to get anything from the government without litigating, and even if you do litigate, you don't get everything that you want."

Although the DIA's exemption request failed in 2000, opponents fear it will now be viewed more favorably by a legislature consumed by the issue of terrorist threats. In its successful push for a similar FOIA exemption in 2003, the National Security Agency warned Congress that spending too much time processing FOIA requests "may require Agency personnel to be diverted from key mission areas, such as fighting the war on terrorism."

Aftergood predicted that as national security concerns continue to impinge on the public's ability to hold the government accountable, rules that weaken the FOIA system face much less opposition than in the past. "We have a different Congress today than we had in 2000," he remarked, "and people have short memories … so it could easily get through."

According to Thomas Blanton, director of the National Security Archive, a FOIA exemption for the DIA would be a sign of the times. He noted, "[T]hese exemptions … create a black hole into which the bureaucracy can drive just about any kind of information it wants to. And you can bet that Guantánamo, Abu-Ghraib-style information is what DIA and others would want to hide."