A government by secrecy benefits no one.

The FOI ADVOCATE
AUGUST 16, 2005 Vol. 4, No. 24

The E-Newsletter of the National Freedom of Information Coalition
http://www.nfoic.org

"A government by secrecy benefits no one. It injures the people it seeks to serve; it damages its own integrity and operation. It breeds distrust, dampens the fervor of its citizens and mocks their loyalty."

-- 110 Congressional Record 17, 087 (1964) (Statement of Senator Long)

A Publication of The Freedom of Information Center
http://foi.missouri.edu

A Unit of the Missouri School of Journalism
http://journalism.missouri.edu

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NFOIC NEWS

VERMONT IS MOVING: Michael Donoghue reports that VT-COG ( not to be confused with VCOG...or Viet Cong...) just held a “mini-meeting” with some key figures that they think are needed on the ground floor for a Vermont Coalition to move forward.

Representatives from SPJ, the Vermont Press Association, the Vermont Librarians Association, the Vermont Genealogical Society and others gathered to discuss coalition building.

MEANWHILE, NFOIC’s relocation to Missouri is complete, and conversations are underway in Pennsylvania, Nevada and West Virginia as well!

SEND US YOUR STATE’S NEWS at daviscn@missouri.edu

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“Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."

-- Justice Louis Brandeis, 1928

TOP OF THE NEWS

"If the documents are more of an embarrassment than a secret, the public should know of our government's treatment of individuals captured and held abroad."

-- Judge Alvin K. Hellerstein in Federal District Court in Manhattan, chastising the administration for its “glacial pace” and ordering the
Pentagon and other agencies to produce a list of all their documents on the detentions at Abu Ghraib prison in Iraq by Oct. 15.

A NEW PUSH FOR REFORM: political odd couple, backed by an unusual coalition of advocacy groups and news organizations, is looking to crack down on government officials who ignore public requests for information.

Sens. Patrick J. Leahy (D-Vt.) and John Cornyn (R-Tex.) are pushing a package of legislative proposals that would create, for the first time, penalties for agencies that ignore Freedom of Information Act requests. They also want to create a position for an independent arbiter -- an ombudsman for FOIA -- who would help referee conflicts between the public and the government while requiring departments to provide more information on how quickly they process requests.

The push -- the first in years -- comes as the act, signed into law by Lyndon B. Johnson on July 4, 1966, marks its 39th year. The law replaced sections of the Administrative Procedures Act that required those wanting information to explain why they needed it. FOIA shifted the burden to the government, requiring it to explain why a request should not be granted.
http://www.washingtonpost.com/wp-dyn/content/article/2005/07/05/AR2005070501282.html

PENTAGON RELEASES MORE PHOTOS: The Pentagon released five more official photos of honor guard ceremonies for U.S. war casualties and uncensored others that were previously released with the faces of the honor guard members blacked out.

The actions were taken in response to a Freedom of Information Act lawsuit by University of Delaware professor Ralph Begleiter, who argued that release of the photographs would honor not only the war dead but also their families. The Pentagon had argued that it would violate the families' privacy and Pentagon policy.

As part of an agreement to settle the lawsuit, Begleiter said the Pentagon gave him written assurance that it would process "as expeditiously as possible" the ongoing Freedom of Information Act requests for such photos.

Of the five newly released photos, three show an honor ceremony aboard a ship at sea, with a flag-draped coffin visible in two of the three. The other two newly released photos appear to have been taken inside an aircraft and show a flag-draped coffin as well as members of the honor guard with their faces blacked out.

More than two dozen photos that were among 721 released to Begleiter in April were re-released with the black-out marks over the faces removed.

"The Pentagon's decision to release these images is a significant victory for the honor of those who have made the ultimate sacrifice in war for their country, as well as for their families, for all service personnel and for the American people," Begleiter said in a statement.
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2005/08/04/national/w152016D18.DTL

ANTITERROR, IRAQ, ETC.

“The danger to political dissent is acute where the government attempts to act under so vague a concept as the power to protect domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.”

-- The ACLU quoting a 1972 United States Supreme Court opinion in United States v. United States District Court for the Eastern District of Michigan,
407 U.S. 297 (1972), which re-emerged in the news recently after Justice Department lawyers blacked it out in filings in a Patriot Act case.

For the evidence, see:
http://www.thememoryhole.org/feds/justice_redaction.htm

IS THERE AN EXEMPTION FOR PR DAMAGE? So what is shown on the 87 photographs and four videos from Abu Ghraib prison that the Pentagon, in an eleventh hour move, blocked from release this weekend? One clue: Defense Secretary Donald Rumsfeld told Congress last year, after viewing a large cache of unreleased images: "I mean, I looked at them last night, and they're hard to believe.” They show acts "that can only be described as blatantly sadistic, cruel and inhumane," he added.

A Republican Senator suggested the same day they contained scenes of “rape and murder.” No wonder Rumsfeld commented then, "If these are released to the public, obviously it's going to make matters worse."

Yesterday, news emerged that lawyers for the Pentagon had refused to cooperate with a federal judge's order to release dozens of unseen photographs and videos from Abu Ghraib prison in Iraq by Saturday. The photos were among thousands turned over by the key “whistleblower” in the scandal, Specialist Joseph M. Darby. Just a few that were released to the press sparked the Abu Ghraib abuse scandal last year, and the video images are said to be even more shocking.
http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1000990590

MEANWHILE, A coalition of 14 media organizations and public interest groups organized by the Reporters Committee for Freedom of the Press has filed a friend-of-the-court brief in U.S. District Court in New York urging the release of Abu Ghraib prisoner abuse photos.

The coalition, which includes CBS Broadcasting Inc., NBC Universal Inc., and the New York Times Co., supports a Freedom of Information Act lawsuit the American Civil Liberties Union has had pending the Defense Department since October 2003.

The government argues that the information is protected by Exemption 7(F) of the FOI Act, which protects law Enforcement records from disclosure when they "could reasonably be expected to endanger the life or physical safety of any individual." Citing recent riots in Afghanistan following Newsweek's publication of an article about alleged Koran abuse at Guantanamo Bay, later retracted, the government says the official release of Abu Ghraib prison abuse photos could similarly incite violence against military personnel and civilians overseas.

"The government has taken the position in this case that the more outrageously the behavior exhibited by American troops, the less the public has a right to know about it," said Reporters Committee Executive Director Lucy Dalglish. "Such a stance turns the Freedom of Information Act inside out." Exemption 7(F) has never been applied to hide incendiary evidence of government misconduct.

Adopting such an interpretation would have dire consequences, the coalition brief argues, by rewarding misconduct with secrecy and “obscuring government accountability at a time when it is most necessary for the public to have full access to the facts."

The photos at issue, known as the "Joseph Darby records" after the military policeman who first turned them over to the Army in early 2004, graphically depict detainee abuse at Abu Ghraib prison. A handful of them were leaked to reporter Seymour Hersh of and published in the May 10, 2004, edition of the New Yorker magazine. Some also were broadcast by CBS News.

The trial court judge had earlier ordered the government to prepare the Darby photos for release by redacting any detainees' identifying features, but last month just hours before the July 23 deadline, the government filed its Exemption 7(F) claim instead of releasing the photos.

The brief can be found at:
www.rcfp.org/news/documents/20050804-amicusbrie.html

ANTI-SECRECY GROUPS CHALLENGE NSLs: The National Security Archive, along with other secrecy experts, today filed a “friend of the court” brief in a lawsuit challenging the FBI’s authority to issue national security letters (NSLs) without any judicial oversight and under a blanket gag order that prohibits the recipient from speaking with anyone about the NSL. The amicus curiae brief was filed with the United States Court of Appeals for the Second Circuit, which is reviewing a lower court decision that held that the NSL authority violated the First and Fourth Amendments to the U.S. Constitution.

The brief argues that secrecy does not always serve the goal of protecting national security, as the numerous investigations into the September 11 attacks on the United States all concluded. Noting that there has been an upsurge in secrecy over the last four years – and that military and intelligence officials ranging from Secretary of Defense Donald Rumsfeld to now-Director of the CIA Porter Goss all admit that a significant amount of the secrecy is unnecessary – the brief argues that the judiciary must provide a meaningful review of government claims for secrecy.

In the case of the NSL authority, the brief points out the particular dangers associated with a permanent and categorical ban on speech by recipients of NSLs and demonstrates the terrible impact that the rule has on government accountability.

In addition to the Archive, the brief was filed on behalf of the Project on Government Secrecy of the Federation of American Scientists, the Electronic Privacy Information Center, and the National Whistleblower Coalition. More information about the lawsuit is available at www.aclu.org.

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB160/index.htm

The lower court decision can be found at: http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB160/September2004DecisionofJudgeM.pdf

CHEMICAL WEAPONS THREAT MAY BE INCREASING: Security experts say the risk of a terrorist attack involving chemical weapons remains relatively small but is increasing, while many chemical facilities in the United States still lack adequate safeguards almost four years after 9/11, according to a recent congressional report.

The Environmental Protection Agency reported in June that about 600 U.S. chemical facilities have vulnerability zones where more than 100,000 people could be affected in the event of a "worst-case" attack, according to a Congressional Research Service report. And about 2,200 other facilities potentially threaten between 10,000 and 100,000 residents. CRS concluded, however, that EPA methodology used for calculating the affected population may understate the potential worst-case consequences of a terrorist attack.

"Because few terrorist attacks have been attempted against chemical facilities in the United States, the risk of death and injury in the near future is estimated to be low, relative to the likelihood of accidents at such facilities or attacks on other targets using conventional weapons," states the report, which was obtained and published by the American Federation of Scientists' Project on Government Secrecy. "For any individual facility, the risk is very small, but risks may be increasing with potentially severe consequences for human health and the environment. Available evidence indicates that many chemical facilities may lack adequate safeguards."

The report outlined options for lawmakers to consider, such as stricter regulations for chemical plant operators or requiring the Homeland Security Department to do more.

"Policymakers face three key issues: how to balance the risks and benefits of public disclosure; how to weigh the relative importance of diverse risks; and whom to hold responsible for achieving results," the report states.

The American Chemistry Council, which represents large chemical manufacturers, reported in July that its members have spent more than $2 billion to improve security at about 2,000 facilities.
http://www.govexec.com/story_page.cfm?articleid=31976&dcn=todaysnews

GENERAL FOIA NEWS

“The Army continued its effort to keep the public informed concerning detainee operations by releasing documents today pursuant to Freedom of Information litigation with the American Civil Liberties Union...”
http://www4.army.mil/ocpa/read.php?story_id_key=7182

FOI AT WORK: The Federal Bureau of Investigation has collected at least 3,500 pages of internal documents in the last several years on a handful of civil rights and antiwar protest groups in what the groups charge is an attempt to stifle political opposition to the Bush administration.

The F.B.I. has in its files 1,173 pages of internal documents on the American Civil Liberties Union, the leading critic of the Bush administration's antiterrorism policies, and 2,383 pages on Greenpeace, an environmental group that has led acts of civil disobedience in protest over the administration's policies, the Justice Department disclosed in a court filing this month in a federal court in Washington.

The filing came as part of a lawsuit under the Freedom of Information Act brought by the A.C.L.U. and other groups that maintain that the F.B.I. has engaged in a pattern of political surveillance against critics of the Bush administration. A smaller batch of documents already turned over by the government sheds light on the interest of F.B.I. counterterrorism officials in protests surrounding the Iraq war and last year's Republican National Convention.

F.B.I. and Justice Department officials declined to say what was in the A.C.L.U. and Greenpeace files, citing the pending lawsuit. But they stressed that as a matter of both policy and practice, they have not sought to monitor the political activities of any activist groups and that any intelligence-gathering activities related to political protests are intended to prevent disruptive and criminal activity at demonstrations, not to quell free speech. They said there might be an innocuous explanation for the large volume of files on the A.C.L.U. and Greenpeace, like preserving requests from or complaints about the groups in agency files.

But officials at the two groups said they were troubled by the disclosure.

"I'm still somewhat shocked by the size of the file on us," said Anthony D. Romero, executive director of the A.C.L.U. "Why would the F.B.I. collect al