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Justice Department Caves on Retroactively Classified Information

A hearing scheduled for the morning of Feb. 22 before U.S. District Judge John D. Bates in Washington was abruptly cancelled after the Justice Department gave up and admitted that the information it had retroactively classified could be released to the public.

Last June, the Project On Government Oversight (POGO) sued then-Attorney General John Ashcroft and the U.S. Justice Department (DOJ) for retroactively classifying information related to whistleblower Sibel Edmonds' allegations of wrongdoing in an FBI translation unit. The suit alleged that the retroactive classification was unlawful and violated POGO's First Amendment right to free speech.

The information about Edmonds had already presented by the FBI to the Senate Judiciary Committee during two unclassified briefings in 2002. The information was referenced in letters from U.S. Sens. Patrick Leahy (D-Vermont) and Charles Grassley (R-Iowa) to DOJ officials. The senators' letters were posted on their Web sites but were removed after the FBI notified the Senate in May 2004 that the information had been retroactively classified

According to a Feb. 23 Washington Post article, a report by the Justice Department Inspector General found that the FBI "was lax in investigating [Edmonds’] complaints and fired her partly because she made them." Critics of the FBI have charged that the real reason for trying to classify the information about the whistle-blower is not that national security secrets are at stake, but rather to cover up sloppy work by the FBI.

During a June 2004 Senate Judiciary Committee hearing, Ashcroft defended the decision to retroactively classify the information, claiming that its further dissemination could seriously impair the national security interests of the United States, even though for more than two years the information was widely available to the public.

"The fact that the Justice Department gave up on the eve of the hearing shows that this information was classified for an improper purpose," said Danielle Brian, POGO's executive director. "If this information could ever have harmed national security, the Justice Department would never have caved in."

Throughout the litigation, POGO had offered to dismiss the suit if the DOJ stated that POGO could discuss and disseminate the letters without fear of prosecution, but the agency refused and instead claimed that POGO lacked standing to maintain the suit because the threat of criminal sanctions did not injure POGO. The DOJ backed down when faced with the prospect of tough questions at the hearing by a federal judge.

POGO was represented in the case by lawyers from the Public Citizen Litigation Group and the Institute for Public Representation at Georgetown University Law Center.

Visit POGO’s Web site to look at the Department of Justice's letter reversing the retroactive classification and other legal documents from POGO vs. Ashcroft, or to examine the background of the case, including press coverage.

 

Posted 02-23-2005 1:05 PM EDT

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CIA Won't Disclose Files on Nazi War Criminals

Sixty years after the fall of Nazi Germany, the CIA is refusing to disclose to a government working group hundreds of thousands of pages that document how the U.S. government tried to recruit Nazi war criminals after World War II. The dispute was made public in a Jan. 30 New York Times article.

According to the 1998 Nazi War Crimes Disclosure Act, a specially appointed working group is supposed to make public "all classified Nazi war criminal records of the United States." But members of the working group have complained that the CIA has been interpreting the law so narrowly that hundreds of records are still secret. According to The Times, the CIA has been dragging its feet for about three years - that would make it shortly after the start of the Bush administration, wouldn’t it? Makes you wonder, who still has skeletons in that closet, and what can they be afraid of?

Records already made public show that the U.S. intelligence and military agencies worked closely with Nazi war criminals after the war, allowing dozens to live safely in the United States.

According to working group member Thomas H. Baer, a former federal prosecutor, "Too much has been secret for too long. The CIA has not complied with the statute." The working group includes representatives of several government agencies, as well as three non-governmental public members.

Sen. Mike DeWine (R-Ohio), one of the sponsors of the 1998 law, has asked the Senate Judiciary Committee to hold a public hearing on the matter, at which CIA officials and members of the working group will testify.

The Anti-Defamation League, an organization that combats anti-Semitism, urged the CIA Feb. 2 to release the documents.

Posted 02-03-2005 5:04 PM EDT

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Don’t Silence That Whistle-Blower!

The case of FBI whistle-blower Sibel Edmonds keeps getting more and more interesting. Edmonds, who was a contract translator for the FBI in Turkish, Farsi and Azerbaijani, was fired by the bureau when she raised questions about the competence of the FBI translation service and also accused a fellow translator of espionage.

Edmonds challenged her dismissal in court - saying it was a retaliatory firing because she was a whistle-blower who is protected by law from such retaliation. But Attorney General John Ashcroft invoked a seldom-used “state secrets privilege” to throw her case out of court because talking about it would allegedly endanger national security.

On Jan. 15,  the inspector general of the Department of Justice issued a highly critical report on the Edmonds affair, finding the FBI had in fact fired Edmonds for whistle-blowing and had failed to take seriously the espionage accusation.

Edmonds is appealing her case in federal court, represented by the American Civil Liberties Union. Public Citizen recently filed an amicus curiae brief supporting Edmonds, along with several other anti-secrecy organizations. For more details on the case of the multi-lingual whistle-blower, see Public Citizen’s press release, read the text of the amicus brief, or read the New York Times coverage of the inspector general’s report.

Posted 01-21-2005 5:42 PM EDT

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Secrecy Policy Still Goes Too Far

The Department of Homeland Security discontinued its requirement that workers at the department sign a secrecy pledge prohibiting them from sharing sensitive but unclassified information with the public. According to the agreement, any information that could compromise the privacy of individuals or "adversely affect the national interest or conduct of federal programs" was considered sensitive, according to The New York Times.

Violators risked administrative, disciplinary, criminal and civil penalties. One provision required signers to consent to government inspections "at any time or place" to ensure compliance.

Within the next month, the department will begin computer-based training sessions for employees on handling sensitive information.

The secrecy pledge was met with wide criticism by civil liberties groups and two unions, all charging the pledge as overly broad, unworkable and an unconstitutional restriction of privacy and free speech.

The unions applauded the department's decision to change its policy, but said its revised plan for safeguarding sensitive information covered "a broad and vaguely defined universe of information." The unions also said the department's approach in managing employees may "undermine national security and the public interest by suppressing whistle-blowing and discouraging dissent."

Scott Amey, general counsel of the Project on Government Oversight, a watchdog group, said department employees are still at risk of unfair disciplinary action.

"A government agency should never threaten its employees or contractors with criminal prosecution for disclosing information that is available under the Freedom of Information Act," Amey said in a written statement.

Posted 01-18-2005 4:13 PM EDT

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Auto Defects? What Auto Defects?

Four years ago, after the spate of Ford-Firestone rollover crashes that resulted from defective tires, Congress passed a law that required certain safety data to be gathered by the government and made available to the public. The purpose of the law was to give the public access to information collected about the vehicles they drive.

But to the delight of the auto industry, the National Highway Traffic Safety Administration (NHTSA) has decided to conceal much of this critical information from the public. NHTSA is withholding warranty claims, production numbers, field reports and even consumer complaints.

Auto manufacturers too often hide safety defects to avoid the costs of recalling vehicles and say they are against making the information public because they would suffer competitive harm. This situation puts the public at risk, according to a statement released by Public Citizen. In a legal brief filed today in the U.S. District Court for the District of Columbia, the group contended NHTSA's secrecy is a perversion of the Freedom of Information Act.

Said Joan Claybrook, president of Public Citizen, "Consumers have a right to know if the vehicle they are driving has potential safety flaws that could injure or kill them."

Posted 01-14-2005 5:21 PM EDT

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The Department of Secret Propaganda

The Bush administration, apparently not satisfied with the usual methods of manipulating news coverage, has been caught paying a prominent journalist to support its views and sending out fake video news segments posing as real news.

On Jan. 8, The Washington Post described how the U.S. Department of Education paid prominent black conservative commentator Armstrong Williams $241,000 to promote the administration’s No Child Left Behind law. The contract called for Armstrong to comment favorably on the law in his broadcasts and to use his contacts with African-American news producers to get favorable coverage of the law.

Armstrong has his own radio show, "The Right Side," appears frequently on CNN and other TV outlets, and has (until recently) had a syndicated column carried by Chicago-based Tribune Media Services. But that company dropped his column when it learned that Armstrong had been paid by a federal agency to promote its agenda.

And on Jan. 7, The Post also revealed that the federal Office of National Drug Control Policy has been sending out video news releases that look like television news segments and which at least 300 local TV stations have used. The segments have an announcer posing as a journalist, and many stations are believed to have used them without ever identifying them as coming from the government.

The Government Accountability Office, a congressional watchdog agency, said the news releases were illegal "covert propaganda." This latest abuse comes after many similar incidents. Last spring, the GAO criticized the Department of Health and Human Services for putting out similar fake news reports promoting the government’s new Medicare drug benefit.

"What is objectionable about these is the fact the viewer has no idea their tax dollars are being used to write and produce this video segment," explained GAO official Susan Poling.

 

Posted 01-10-2005 2:21 PM EDT

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Let's Not Talk About Missile Defense

Back in 1983, President Ronald Reagan promised the nation a high-tech shield against missile attacks. The White House called the plan the Strategic Defense Initiative; critics called it Star Wars and said it was an impossible dream.

Twenty-two years later, America still has no missile shield and the U.S. Department of Defense is doing its best to keep the truth about it from the public. In 2000, the Pentagon’s Department of Operational Testing and Evaluation put out a report that was highly critical of U.S. efforts to assemble a national missile defense system. The report was discussed in public hearings and reported on in the media.

Three years later, the DoD classified the document, without offering any justification - even though the substance of it was well known. The Washington watchdog organization, the Project on Government Oversight (POGO), is doing its best to fight the Pentagon’s retroactive classification. It is asking people to write Rumsfeld protesting the classification, and has posted details on how to do that. POGO states that the secrecy move is most likely an attempt to stifle debate on the expensive missile defense program, which had another test failure Dec. 15.

 

 

 

Posted 12-27-2004 5:39 PM EDT

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A Ray of Sunshine on Classified Documents?

The National Intelligence Reform Act passed by Congress on Dec. 8 does create a new "director of national intelligence" position - and that’s what has gotten most of the media attention. But it does other things as well.

From the perspective of Americans worried about too much government secrecy, the law also contains a bit of good news: It creates a Public Interest Declassification Board, a body members of Congress can appeal to when they feel federal agencies are classifying too much information in the name of national security.

Senators Ron Wyden (D-Ore.) and Trent Lott (R-Miss.) pushed for the new board, partly as a response to a controversy over how much of a scathing congressional report on CIA assessments of Iraq could be made public. The CIA wanted to classify more than half of the report, but members of Congress got that down to 20 percent.

Last year alone, the U.S. government spent $6.5 billion creating 14.3 million new classified documents, according to a statement from Wyden’s office

The board will have nine members - five appointed by the president and four appointed by Republican and Democratic leaders of Congress. The Associated Press report on creation of the board is based on Wyden’s statement.

The intelligence act also tries to inject a bit of civil liberties awareness into the Department of Homeland Security. It adds the protection of civil liberties and civil rights to the department’s mission statement, and creates a new position to protect civil liberties and civil rights in the DHS office of the inspector general.

 

Posted 12-13-2004 12:22 PM EDT

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How to Say "No to Secrecy" in Indonesian

Fred Burks, a valued State Department interpreter for 18 years, has quit his job rather than sign a secrecy agreement. Burks, who has interpreted for Presidents George W. Bush and Bill Clinton, told The Washington Post he had quit in protest over growing government secrecy demands.

A contract interpreter, Burks had never been required to sign a secrecy agreement until last month. When the State Department told him he would have to sign a new contract in which he would promise not to reveal any information he learned in his government service, he just refused. And since he never did sign such an agreement, he has been able to tell his story to any media that will listen.

Burks was valued by the State Department because he was qualified in two difficult languages, Mandarin and Indonesian. He says he is one of three American interpreters qualified at the highest level in Indonesian.

An interesting side note: When Burks interpreted for Bush at a 2001 meeting with Indonesian President Megawati Sukarno, he told The Post, "Bush displayed such a detailed grasp of Indonesian issues at the meeting that he came away thinking the president must have been fed information through a hidden earpiece." Reminds us of a presidential debate we watched not long ago . . . .

Posted 12-09-2004 6:24 PM EDT

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Compromise Proposed on Cheney Energy Task Force

Open-government advocates launched a new initiative Nov. 30 in the long-running battle legal battle over Vice President Cheney’s energy task force. The nonprofit National Security Archive, along with several library, journalist and public interest organizations, filed a brief that points to a compromise solution that would reveal some information about the task force but allow the task force records to remain confidential.

The task force was one of the earliest, and most hotly contested, secrecy moves of the Bush administration. Assembled shortly after Bush and Cheney took office in 2001, the task force met secretly with industry lobbyists and executives to formulate a national energy strategy that was very friendly to business and ignored environmental concerns.

For more than two years, the conservative group Judicial Watch and the Sierra Club have been trying to gain access to the task force records. They believe that keeping the records secret violates the Federal Advisory Committee Act. Critics also believe that the task force met with energy industry lobbyists while excluding environmental, consumer and public interest input - which biased the task force’s recommendations.

While the Bush administration has lost several rounds in the courts, it has kept filing appeals. One result: The records were still locked up during the fall presidential campaign. The case is now awaiting a second hearing in the D.C. Circuit Court of Appeals. The controversy has been covered extensively in this blog.

The National Security Archive, a Washington-based nonprofit that makes public previously secret government materials, and its allies have filed an amicus curiae brief in the D.C. Circuit Court of Appeals. They recommend that the parties work out a compromise that would accommodate the competing interests in the case. The compromise would set up a "Cheney log" providing enough information so that outsiders could tell whether non-government persons participated in the task force. That in turn determines whether the Federal Advisory Committee Act applies.

Posted 12-03-2004 11:16 AM EDT

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