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Bizarre Courtroom Exclusion in FBI Whistleblower Case

The U.S. Circuit Court of Appeals for the District of Columbia barred the public, the media and Public Citizen’s lawyers from the courtroom April 21 in the case of Sibel Edmonds, the FBI whistleblower. Public Citizen attorney Michael Kirkpatrick, who had filed an amicus curiae brief in the case, called the exclusion "bizarre."

The action was taken at the initiative of the court itself, rather than at the request of the government (which would have been more typical). While the case involves sensitive material - Edmonds had complained about sloppy methods and a possible security breach in the FBI’s translation section - the court’s action will not keep testimony in the courtroom out of the public record.

That’s because, as Kirkpatrick explained, "there’s no gag order, and the court will release transcripts," which means that whatever is said in court will soon be made public. In addition, Edmonds’ lawyers, who were allowed to be present, do not have security clearances. The court closed the hearing on very short notice and gave no reason for the exclusion, Kirkpatrick said.

Public Citizen filed an emergency motion to contest the courtroom closure as did the American Civil Liberties Union, but their motions were denied.

Steven Aftergood of the Federation of American Scientists’ Secrecy News suggests the exclusion "seemed intended to suppress media coverage of the hearing rather than to protect classified information." Edmonds, a former FBI contract translator, says that she was fired for telling FBI supervisors about shoddy wiretap translations from Middle Eastern languages and the possible leaking of information to the target of an investigation.

See a January 19, 2005, Public Citizen press release for more background and documents on the Edmonds case.

 

Posted 04-22-2005 2:21 PM EDT

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AP Sues Government Over Secret Guantanamo Hearings

The Associated Press filed suit April 19 in federal court for the release of documents related to military hearings for Guantanamo detainees, according to an AP report. More than 500 terrorism suspects are being held at the U.S. military base in Cuba.

The AP says that it has been able to report only anecdotally on 558 tribunals conducted by the military since last August, after the Supreme Court ruled that the detainees may challenge their imprisonment. The news organization asked the court to order the government to release transcripts of all detainees’ testimony, along with their written statements and documents they have submitted.

The AP submitted a Freedom of Information Act (FOIA) request for the information last fall, but the government has refused to provide the documents. The news agency says the documents are "unquestionably of great interest to the public."

The U.S. government has designated Guantanamo detainees enemy combatants, which means they have fewer legal protections than prisoners of war and can be held indefinitely without charges.

After a court ordered the military to comply with a FOIA request, the American Civil Liberties Union received thousands of documents pertaining to the treatment of detainees at Guantanamo, but the ACLU is still seeking video and photographic evidence.

A limited number of documents showing U.S. government charges and rulings about some Guantanamo detainees (but not the detainees’ own statements) can be viewed on an AP Web site.

 

Posted 04-21-2005 5:31 PM EDT

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Washington Post Slams Administration Secrecy

The lead editorial in the April 18 Washington Post criticizes the Bush administration in general and the Nuclear Regulatory Commission in particular for going overboard in making government information secret.

The Post describes several cases in which the NRC has kept secrets about safety vulnerabilities from the very people who are supposed to be studying those problems, including the U.S. nuclear industry. In one instance, an expert panel "was unable to examine several important issues related to the security of spent fuel, in part because it was unable to obtain needed information from the Nuclear Regulatory Commission."

The editorial points out that the NRC is not alone in its excessive drive for secrecy: For example, CIA budget data going back more than 40 years are still classified, even though the information was earlier made public.

For more on NRC secrecy, see this recent Bushsecrecy blog entry.

 

Posted 04-18-2005 6:07 PM EDT

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Bush's IRS Blocks Release of Documents, After 30 Years of Openness

The Internal Revenue Service is illegally withholding information about how it enforces tax law, using the absurd excuse that releasing the information would compromise homeland security. But the Public Citizen Litigation Group - supporting the Transactional Records Access Clearinghouse (TRAC) - has sued the agency as part of TRAC’s ongoing effort to make public information that has been regularly available for the past 30 years, according to a Public Citizen press release.

What makes the IRS refusal especially outrageous is that the tax agency accepted a consent decree stemming from previous litigation that required it to make statistical information available to TRAC on a regular, ongoing basis. But the IRS recently balked at releasing the data, asserting that it would have to be specially compiled since it no longer keeps basic statistics about audits, appeals and collection activities.

TRAC, a nonpartisan research center based at Syracuse University, has in the past obtained information about the IRS’s databases and programs, statistical tables and an IRS manual on information systems. Such information allows independent observers to make their own judgments about how the agency is enforcing U.S. tax laws. For example, researchers have found that wealthy taxpayers are much more successful than poor ones in getting the IRS to reduce the amount of taxes and penalties owed in enforcement actions.

"From my research it appears the IRS is reverting to its habits in the 1950s and 1960s, when secrecy was the norm and the problems of corruption and political abuse were later uncovered by the Congress," said David Burnham, a co-director of TRAC, former New York Times reporter and author of "A Law Unto Itself: Power, Politics and the IRS."

The lawsuit filed by Public Citizen on behalf of TRAC claims that there is no valid exemption under the federal Freedom of Information Act for the IRS documents, and that agency officials have no authority to designate the documents "For Internal Use Only," as they have done. The plaintiffs are also asking the court to take initial steps toward finding the IRS officials subject to disciplinary action for arbitrarily and capriciously withholding documents from the public.

Posted 04-14-2005 3:03 PM EDT

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Defense Doctrine Web Site Shut Down

A large portion of a major U.S. Department of Defense Web site was taken offline April 8, after unclassified documents on the site became the subject of news stories and public controversy. The disappearing act was reported by the Federation of American Scientists’ Secrecy News, an excellent source on government secrecy and secrets.

The missing Web presence is the Defense Technical Information Center (DTIC) Joint Electronic Library, where until recently you could find hundreds or thousands of doctrinal and other publications. It has been replaced by a single page that reads, "This website is under review. We apologize for any inconvenience this may cause."

One of those publications was a draft entitled "Joint Doctrine for Detainee Operations" (JP 3-63) that was circulated by Human Rights Watch and others and that was critically reported in the press.

Another was a draft "Doctrine for Joint Nuclear Operations" (JP3-12), that was spotlighted by Jeffrey Lewis of ArmsControlWonk.com in early April.

In response, the Defense Department removed those draft documents, but also many hundreds of others. According to Secrecy News, a DTIC spokesman was not immediately available for comment.

To see a good selection of the documents that have gone missing, go to the FAS Web site. (In a wired world, it’s hard to hide information once it’s been put on the Web.)

Posted 04-08-2005 4:30 PM EDT

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Government Keeps More Secrets, Longer

The federal government set a new record for creating classified secrets in 2004, according to a new report from OpenTheGovernment.org, an organization devoted to reducing government secrecy. Federal employees chose to classify information 15.6 million times last year - 10 percent more than the previous year.

They also are keeping information secret longer: Two-thirds of the time, federal employees said the information should be kept secret for 10 years or more.

At the same time, the flow of old secrets to the public dropped to its lowest point in nearly a decade:  28 million pages in 2004. OpenTheGovernment.org noted that at this rate, the federal bureaucracy is falling further and further behind in its designated goals for making old classified information public.

Declassification has dropped 72 percent since the attacks of Sept. 11, 2001 - from just over 100 million pages to just 28.4 million pages in 2004. That’s the lowest number since 1994, when government agencies began automatically releasing documents classified for 25 years or more.

According to the report, the late 1990s seem to have been the heyday for reducing government secrecy. Only in the years 1995 to 1999 did the numbers of pages government secrets DECLASSIFIED exceed the number of pages of NEW classified documents.

The 2004 data came from the National Archives’ Information Security Oversight Office and can be viewed online. For a quick summary, see the OpenTheGovernment.org press release.

Posted 04-07-2005 11:20 AM EDT

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U.S. Secrecy Policy Challenged on Two Fronts

Two aspects of U.S. government secrecy are being subjected to new challenges - one by the American Civil Liberties Union, and the other by a group of Democratic senators. Each is tackling a part of the U.S. secrecy regime installed as a response to Sept. 11, 2001.

According to a report by the Inter-Press Service, the ACLU has filed a freedom of information (FOIA) request for records on the government’s practice of stopping scholars and others from entering the United States because of their political views. An ACLU attorney, Jameel Jaffer, said that while the USA Patriot Act permits the government to exclude foreign scholars who encourage terrorism, in fact the government is excluding people “simply because it disagrees with what they have to say.”

For example, Dora Maria Tellez, a leader of the 1979 Sandinista revolution in Nicaragua and later an elected Nicaraguan official, was forced to abandon a teaching position at Harvard after the U.S. government refused her a visa.

The ACLU’s FOIA request is aimed at the State Department, the Justice Department, the Department of Homeland Security and the CIA. It requests the names, nationalities and professions of those who have been excluded under the Patriot Act. Parts of the Patriot Act expire at the end of 2005, and the Bush administration wants Congress to re-enact the law in its entirety.

Meanwhile, back in Washington, four senior Democratic senators - Patrick Leahy of Vermont, Carl Levin of Michigan, Russ Feingold of Wisconsin and Joseph Lieberman of Connecticut - introduced the “Restore FOIA Act” to roll back some of the secrecy excesses of the Homeland Security Act of 2002.

The senators are focusing on the part of that law that creates a FOIA exemption for what it calls “critical infrastructure information” about power plants, bridges, dams, chemical plants and the like. The idea was that the exemption would encourage the owners of such facilities would be willing to share information about vulnerabilities if they knew that information would not fall into the hands of terrorists.

But, Leahy said in a statement introducing the bill that the legislation is too broad. It “shields the companies from lawsuits to compel disclosure, criminalizes otherwise legitimate whisteblower activity by Department of Homeland Security employees, and preempts any state or local disclosure laws.”

The proposed legislation would expand the public’s right to know about infrastructure problems while still protecting essential security secrets about infrastructure submitted by the private sector.

Posted 04-01-2005 2:49 PM EDT

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Public Citizen Slams NRC Proposal for More Secrecy

The Nuclear Regulatory Commission is proposing to further reduce public access to information about nuclear safety, but Public Citizen has filed formal comments asking the NRC to withdraw its unwarranted new secrecy regulations. Public Citizen strongly objects to the agency's proposal to revise its regulations governing the protection of so-called "Safeguards Information." Access to that information is restricted to people who have undergone extensive background checks and demonstrated a "need to know" the information.

Public Citizen says the new rules go far beyond the "minimum restrictions needed to protect the health and safety of the public or the common defense and security," as required by the Atomic Energy Act of 1954, the law that established the Safeguards category. Public Citizen’s press release on the matter and full comments to the NRC are both available online.

"Rather than applying the 'minimum restrictions needed' requirement, the commission is attempting to expand the category of Safeguards Information to encompass virtually anything it wants - including information important to the public such as engineering and safety analyses, emergency planning procedures and inspection reports on nuclear facilities," said Wenonah Hauter, director of Public Citizen’s Critical Mass Energy and Environment Program. "This is an unacceptable information blackout that will leave the public in the dark about the competency of the nuclear industry and the NRC."

The NRC's proposed rule would improperly restrict the public's access to important information that has proved useful in the past, the organization says. For example, using information obtained from the NRC about nuclear facilities' security capabilities, citizen groups in the early 1990s successfully pressured the agency to adopt higher standards for the protection of nuclear facilities, incorporating the possibility of adversaries using truck bombs.

The proposed rule comes at a time when the NRC is under fire for its use of the Safeguards classification to conceal industry vulnerabilities. U.S. Rep. Edward Markey (D-Mass.) recently said in a letter to the NRC's inspector general that the suppression of a National Academy of Sciences (NAS) study about the security vulnerabilities of the pools in which reactor operators store irradiated nuclear fuel may be "based on the fact that it disagrees with the NAS' conclusions, not on any legitimate security concerns."

The NRC-NAS disagreement centers on whether it is safe enough to store spent nuclear fuel rods in large pools of water, or whether that highly radioactive spent fuel should be transferred to dry storage, which is probably safer but which would be more expensive.

The Washington Post, in a March 28 article, quotes NAS officials making the point that NRC Chairman Nils Diaz is misleading Congress about the Academy’s conclusions. E. William Colglazier, NAS executive director, warned that "if someone only reads the NRC report, they would not get a full picture of what we had to say."

Colglazier told the Post that the National Academy of Sciences has produced many classified reports but had never encountered such hurdles in creating a public version.

Posted 03-29-2005 5:53 PM EDT

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Whistleblower Protection Unit Under Attack

The Office of Special Counsel - the federal office that is supposed to protect government whistleblowers - is being systematically weakened by its own politically motivated director. In response, the Project on Government Oversight (POGO), a watchdog organization, has organized a campaign to stop this negative crackdown and support freedom of information in the federal government.

The dismantling of whistleblower protection was exposed in a press alert by POGO, Public Employees for Environmental Responsibility and the Government Accountability Project.

National Public Radio
covered the story March 9, and it can be heard online. As NPR points out, it’s ironic that the office that was supposed to protect whistleblowers now needs protection itself.

The purpose of the Office of Special Counsel (OSC) is to enforce the Whistleblower Protection Act, so that if someone reveals abuses, say, at the Defense Department, they won’t be disciplined for speaking out. But Special Counsel Scott Bloch has placed a gag order on OSC staff and "purged" 12 senior staffers. The press alert reveals that OSC is "now scrambling to shrink its workload further, enlisting summer interns to dismiss cases."

POGO asked supporters of open government to come to its online Action Center to urge Congress to investigate OSC’s anti-whistleblower activities.

 

 

Posted 03-18-2005 1:48 PM EDT

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Poll: Americans STILL Don't Like Government Secrecy

Despite 9/11 and the Bush administration’s war on terrorism, seven of 10 Americans are still worried about excessive government secrecy, according to an Associated Press report.

A poll conducted in early March for a coalition of media groups and others concerned about government secrecy showed that more than half of Americans feel the government should provide more access to its records. Even more said they were "concerned" or "very concerned" about government secrecy.

The poll results surprised some secrecy experts, who expected that Americans might have become more tolerant of government secrecy since the attacks of Sept. 11, 2001. Instead, attitudes have not changed much since a similar poll conducted in February 2000.

Among the poll’s findings: 52 percent of 1,003 respondents said there is too little access to government information, 36 percent said access is "just about right," and 6 percent said there is too much.

 

 

Posted 03-16-2005 4:25 PM EDT

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