8. Pentagon Exempt from Freedom of Information Act

Sources:

New Standard, May 6, 2005
Title: “Pentagon Seeks Greater Immunity from Freedom of Information”
Author: Michelle Chen

Newspaper Association of America website, posted December 2005
Title: “FOIA Exemption Granted to Federal Agency”

Community Evaluator: Tim Ogburn
Student Researcher: Rachelle Cooper and Brian Murphy

The Department of Defense has been granted exemption from the Freedom of Information Act (FOIA). In December 2005, Congress passed the 2006 Defense Authorization Act which renders Defense Intelligence Agency (DIA) “operational files” fully immune to FOIA requests, the main mechanism by which watchdog groups, journalists and individuals can access federal documents. Of particular concern to critics of the Defense Authorization Act is the DIA’s new right to thwart access to files that may reveal human rights violations tied to ongoing “counterterrorism” efforts.

The rule could, for instance, frustrate the work of the American Civil Liberties Union (ACLU) and other organizations that have relied on FOIA to uncover more than 30,000 documents on the U.S. military’s involvement in the torture and mistreatment of foreign detainees in Afghanistan, Guantanamo Bay, and Iraq—including the Abu Ghraib scandal.

Several key documents that have surfaced in the advocacy organization’s expansive research originate from DIA files, including a 2004 memorandum containing evidence that U.S. 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 in 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 New Standard, 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 covered by the exemption could contain critical evidence of how other parts of the military operate as well.

he 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 FOIA 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 federal agencies from public scrutiny.

According to language in the Defense Authorization Act, an operational file can 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.”

Critics warn that such vague bureaucratic language is a green light for the DIA to thwart a wide array of legitimate information requests without proper justification. Steven Aftergood, director of the research organization Project on Government Secrecy, warns, “If it falls in the category of ‘operational files,’ it’s over before it begins.”

Thomas Blanton, director of the National Security Archive, adds, “These 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.”

The Newspaper Association of America reports that, due to lobbying efforts of the Sunshine in Government Initiative and other open government advocates, congressional negotiators imposed an unprecedented two-year “sunset” date on the Pentagon’s FOIA exemption, ending in December 2007.

Update by Michelle Chen:

The Defense Intelligence Agency, the intelligence arm of the Department of Defense, has been a source for critical information on the Pentagon's foreign operations as well as the DIA's observations of the conduct of other branches of the military. Its request for immunity from the Freedom of Information Act last year was not the first attempt to shield its data from members of the public, but it did come at a time that the governent's anti-terror fervor was beginning to crest.

Open-government groups warn that such an exemption from FOIA requests, which the Central Intelligene Agency already enjoys, would close off a major channel for information in a government bureaucracy already riddled with both formal and informal barriers of secrecy. The Pentagon's request alarmed groups like the ACLU, which has relied heavily on such data to build cases regarding torture and abuse of detainees in Iraq.
(http://www.aclu.org/torturefoia/released/042005/).

Since the article was published, the language proposed for the Defense Department budget for FY 2006 was adopted. (The public print of the bill can be read at the GPO website here, buried on page 472: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s1042pp.txt.pdf.)

The bill specifically refers to the immunity of "operational files," though this is somewhat ambiguously defined.

Another development in this issue area over the past year is that secrecy and intelligence gathering have become intense domestic political issues. As a result, heightened public attention to the gradual rollback on open-government laws is beginning to stir some congressional action in the form of hearings and investigative reports, not just related to classified information per se but also the new quasi-classified categories that have cropped up since 9/11 (http://www.fas.org/sgp/congress/2006/index.html).

Earlier this year, the Pentagon initiatied a department-wide review of FOIA practices, though it is unlear whether this internal evaluation will lead to actual changes in how information is disclosed or withheld from public purview. (http://www.defenselink.mil/pubs/foi/DoD_FOIA_Review.pdf).

For more on this issue, see:
The Project on Government Secrecy, a watchdog group run by the American Federation of Scientists:
http://www.fas.org/sgp/congress/2006/index.html

The National Security Archives at George Washington University, which has an extensive collection of FOIA documents and has issued numerous reports and studies on government secrecy and FOIA policies:
http://www.gwu.edu/~nsarchiv/nsa/foia.html