On Nov. 30, Congress and the President succeeded in tying the hands of the judicial system from releasing photographic evidence of American soldiers torturing detainees in U.S. custody in Iraq and Afghanistan.  The Supreme Court today reversed a lower court ruling that the pictures must be released.

Since the lower court decision, the Obama administration worked to aggressively cover up evidence behind closed doors despite its public posturing.  Attorney General Eric Holder testified in June that the administration would appeal the lower court decision to the Supreme Court and if unsuccessful would review their opinions on the matter.

Statements by Sens. Lindsey Graham (R-SC) and Joseph Lieberman (I-CT), however, indicated that the administration wanted to see legislative action to stop the release of the photographs.  After Holder’s testimony, the Senate passed the Detainee Records Photo Protection Act of 2009 (S 1285) with unanimous consent that would have exempted such photographs from the Freedom of Information Act.  The bill passed easily in the House on October 28 as an amendment to the Defense Department’s authorization bill (HR 2647).

Unsurprisingly, the Supreme Court pointed to this legislation in a one-paragraph ruling as the reason for allowing the administration to withhold these records.  The decision places the case back in the hands of the 2nd U.S. Circuit Court of Appeals which will likely follow orders not to release the records.

Earlier this year, the Obama administration released memoranda that detailed the policy and actions of U.S. personnel in torturing detainees because “the existence of that approach to interrogation was already widely known.”  Logic follows that continuing to withhold the images of such abuses can only be an effort to obscure the historical record.  The administration, on the other hand, claims it is an effort to protect American soldiers.  However, it’s impossible to conceive of how our soldiers are safer if our government continues to conceal evidence of its past crimes.

Efforts to improve the security of chemical facilities from terrorist attack took a step forward this week as a House subcommittee passed legislation that encourages plants to switch to safer and more secure technologies. The bills – the Chemical Facility Anti-Terrorism Act of 2009 and a related bill that addresses security at drinking water facilities – also require participation by plant workers in assessing vulnerabilities and creating a security plan. With no Republican support, the party-line vote in the Energy and Environment subcommittee sends the bills to the full Energy and Commerce committee for another vote, likely next week. Although the bills still lack crucial accountability measures, they represent a major improvement over the flawed and inadequate temporary security measures now in place.

The bills require all covered facilities to assess whether there are alternative chemicals or processes that they could use that would reduce the consequences of a terrorist attack. For example, numerous water facilities across the country have independently switched from using chlorine gas as a disinfectant to liquid bleach or ultraviolet light. These alternate technologies work as well or better than chlorine gas and do not potentially threaten thousands should a terrorist attack cause a release.

Significantly, the bills give the Department of Homeland Security or the Environmental Protection Agency the authority to require the most high-risk facilities to convert to whichever safer technology the facility identifies for itself – under certain circumstances. A chemical plant can only be forced to convert if it is economically and technologically feasible to do so and if the conversion would actually reduce the risks.

Unfortunately, the bills allow the government to conceal information that should be available to the public. Citizens have a right to know whether the government and the regulated businesses are complying with the law and doing what they must do to make our communities safer. However, under the bills, basic regulatory information can be treated as secret, thereby denying the public the information needed to hold the government accountable and protect citizens.

The bills include valuable citizen suit provisions that give people the power to use the courts to impel compliance with the law. These lawsuits have proven repeatedly to be essential to upholding laws that protect the public interest. Yet, without public disclosure of even basic compliance information, the usefulness of this important tool is undercut. How can the public know whom to sue or for what violations if that information is kept secret? And, to be sure, disclosure of this information would not be a security threat. On the contrary, allowing the government and businesses to implement national security legislation without meaningful accountability arguably is a real security risk.

The House Homeland Security committee passed a weaker version of the chemical facilities bill in June. The Senate has taken no action on the issue, preferring to let the House take the lead and react to whatever it produces. The existing security regulations expired this month, but interim appropriations measures have extended that expiration date. There is a long road ahead for perilously overdue legislation that adequately addresses a serious threat to national security by reducing the risks of a terrorist attack on a chemical plant. Tell your representative to support this effort by clicking here.

Today, the Justice Department released a pivotal policy statement on the way the Obama administration will govern use of the state secrets privilege.  The new policy will be implemented on Oct. 1.  This is a welcome step toward President Obama’s promise of an unprecedented level of openness and away from the former administration’s “just trust us” approach when using the privilege to withhold evidence in lawsuits against the government.  While it seems highly likely that previous administrations have used the unfettered privilege to avoid embarrassment or corruption charges, the Obama administration has limited its use to national security purposes.

This unparalleled policy echoes many of the recommendations made by over 350 open government advocates in the Moving Toward a 21st Century Right-to-Know Agenda from November 2008.  Among the guidelines established:

• An independent review committee made of prosecutors and the attorney general must first approve the administration’s state secrets claim before it can be invoked in court.
• Evidentiary requirement to the court for state secrets claim.
• Limiting the administration’s ability to seek dismissal of an entire case based on the application of the privilege to evidence to strict national security reasons.
• Commitment to only use the privilege for legitimate national security and not to conceal illegal activities, embarrassment, or to delay the release of information that would not reasonably be expected to cause significant harm to security.
• Regular reports on the use of the privilege from the Justice Department to Congress.  Unfortunately, there is no specified timing to the reporting.  The policy only calls for “periodic” reports.
• Inspector general oversight of for credible allegations of government wrongdoing.

While some may not see this as much different than the system that existed before, what is different is 1) the application of the policy across agencies, 2) requiring a formal process for requesting the privilege; 3) the incorporation of extensive checks and reviews within the government including the inspector general investigations.

The policy does not include everything the open government community identified as needed for reforming the use of the privilege.  For instance, the administration only reviewed current court cases in which the privilege has been asserted.  While closed cases cannot be reopened, a public review of the previous applications and whether or not the new policy would allow the same claim could greatly illustrate the extent of the policy change.  The memo is also silent on allowing judicial review of state secrets evidence in camera, but this seems to be implied.  Further, the line in the memo reading, "information that is nonpublic but not classified" is disheartening.  The new policy is still quite broad but it is now much less likely that the privilege will be abused.

In February, many open government groups and advocates were giving up hope for state secrets reform claiming that the administration’s application of the privilege in Mohammed v. Jeppesen Dataplan was a 180 degree reversal of Obama’s campaign position.  I encouraged everyone not to panic and asserted that the administration might simply be taking time to fully assess the state secrets cases and what exact changes it wanted to put in place.  It appears that such a review was occurring and it has been completed.  Considering the importance of the privilege and its recent use in several terrorism related cases, eight months is fairly quick turnaround.

It is unclear what impact the policy will have on specific cases currently before the courts.  It will not likely alter the administration’s application of the privilege to the al-Haramain Islamic charity case.  Further, the administration has already withdrawn the government’s use of the privilege in the case of a Drug Enforcement Agency officer who is claiming that the government wiretapped his home.  The administration has also continued the Bush legal policy in a case against the National Security Agency on warrantless wiretapping and, of course, the Jeppesen extraordinary rendition case.

I am elated to see evidence that the executive branch wants to responsibly wield such potentially broad power.  Personally, I would like to see these changes, and more, permanently enshrined in statutory law.  To quote Glenn Greenwald from February, “We don't actually have a system of government (or at least we're not supposed to) where we rely on the magnanimity and inherent Goodness of specific leaders to exercise secret powers wisely.”  Fortunately, the U.S. Court of Appeals ruled in the Jeppesen case that the administration could not dismiss an entire case based on the privilege alone.  Hopefully, future courts will follow this precedent if such an application by any administration is attempted again.

Currently, there is legislation in the House of Representatives and Senate to curtail the application of the privilege.  Primarily, this legislation directs the White House to submit information it deems to be protected by the privilege for in camera review.  It also prohibits the outright dismissal of a lawsuit without independent review of the evidence.  The bill in the House (H.R. 984), introduced by Jerry Nadler (D-NY), has not moved out of the Judiciary Committee since it was referred in June.  I also hope this policy does not prevent Congress from moving forward with their bills.

Earlier this month, the Washington Post ran a story about the intelligence community’s efforts to push legislators to amend the Intelligence Authorization Act (S. 1494) to exempt “terrorist identity information (TII)” from the Freedom of Information Act (FOIA).  Currently, this information is marked as Controlled Unclassified Information (CUI) with a stamp that reads “for official use only” but the Office of the Director of National Intelligence (ODNI) made overblown claims that the information could readily be requested under FOIA with little protection.  We have proof that these claims were ridiculous.

The terrorism watchlist was developed in 2004 and is maintained by the Terrorism Screening Center of the Federal Bureau of Investigation (FBI).  It contains around 400,000 individuals – over 1.1 million names and aliases.  This information is sent through the federal government to the Transportation Security Administration and the State Department among others.  Additionally, the FBI disseminates it to state and local law enforcement.

In order to disseminate to state and local law enforcement, the FBI must first declassify the list so that individuals without a clearance, such as police officers, can access it.  To keep the information from the public, this information is labeled as CUI with a stamp that reads “for official use only.”

The real problem for the ODNI was that their office loses the protection of FOIA's Exemption 1, national security information, due to the nature of the material being unclassified.  In court, judges generally defer automatically to the intelligence community on this exemption.  Michael Birmingham, a spokesman for the ODNI, elaborated that they were seeking to legislatively expand the list of FOIA exemptions for TII because “no [such] exemption currently exists under FOIA.”  The thing is the protections under FOIA are already adequate.

If the DNI’s reasoning was solid, then I could easily access the terrorism watchlist by submitting a FOIA request for the information.

And so I did.

The FBI promptly responded by refusing to process the request until I could “submit either proof of death or a privacy waiver from the subjects of your request.”  How am I to do this if the list is not public anyway?  I clearly don’t know who is on the list and cannot ask them to sign a privacy waiver and am unable to know if any of them are deceased.  Anyway, this is a somewhat reasonable application of an exemption the ODNI claims does not exist – (b)(6); personal information affecting an individual’s personal privacy.

Further, if I am on the list and sign the privacy waiver for myself, how will it help me if I am a terrorist?  If that was the case, the FBI would likely invoke another exemption that supposedly doesn’t exist – (b)(7)(c); personal information in law enforcement records.  In this situation, the FBI did in fact do just that.   Moreover, we know that less than five percent of individuals on the list are U.S. citizens.  It should be noted that only U.S. citizens can attempt to use FOIA to obtain this information.

In essence, the ODNI was attempting to prevent this information from being subject to a court review if a private individual or entity wished to challenge the content of the watchlist.  This would merely allow the ODNI to be unaccountable for its mistakes that may have life-altering consequences for the wrongly accused.  In May 2009, the Justice Department’s inspector general found that the FBI failed to update or remove watchlist records as required.  One individual even remained on the watchlist for nearly five years after the terrorism case against him/her had been closed.

Fortunately, the ODNI did not succeed with its attempts to influence legislators.   The Senate unanimously passed the Intelligence Authorization Act on September 16, without the language amending FOIA.

Good job, Senators.