Shhhh! Before you continue reading, dim the lights and draw the shades. Although these pages do not endanger lives or unmask secrets, they could be declared too sensitive for you to read. Who would have guessed America's freedom of the press and open government laws would be wounded in the war on terrorism?
Artieles from Proceedings and other open-source publications were among many documents the National Academy of Sciences (NAS) included in the public access file on nonlethal weapons that it compiled for a related study. The trouble began when the NAS suppressed the entire file—under the auspices of a security review—after a watchdog group asked to see particular documents early last year. Some documents were released months later, but most stayed hidden throughout 2002. The Federal Advisory Committee Act (FACA), an open government law, requires the NAS to provide public access to the file. Instead, the academy demonstrated how easily President George W. Bush's policy to safeguard "sensitive," unclassified information can defy common sense in practice.
Nonlethal weapons are intended to incapacitate individuals without killing them. The subject has received considerable media coverage, much of it encouraged by the Marine Corps, which is the executive agent for the Department of Defense (DoD) nonlethal weapons effort. (Various law enforcement agencies are developing nonlethal technologies also.) In its report—written long before the Russians gassed terrorists and hostages in Moscow last fall, but released shortly thereafter—the NAS recommended that DoD develop similar calmative chemical agents capable of subduing individuals and expand the breadth of its nonlethal research.
Before the report was published on 4 November 2002, its classification review became a yearlong struggle between the academy and the Joint Non-Lethal Weapons Directorate, thus revealing how difficult and contentious decisions about releasing government information had become following the attacks of 11 September 2001. The NAS sought for months to release the report, but was refused repeatedly by the head of the directorate, Marine Corps Colonel George Fenton. There are conflicting opinions over whether a security review was used improperly to suppress the NAS's criticism of the nonlethal weapons program. Colonel Fenton said the academy panel resisted deleting classified information from its report; NAS spokesman Bill Skane accused him of seeking to suppress the report because it criticized the nonlethal weapons office. According to the academy, when the Office of Naval Research (ONR) adjudicated the matter last summer, it concluded in a few months that the report was unclassified and could be released "as is." Ironically, the National Academy of Sciences has been criticized for withholding numerous other documents related to the study.
Public Access?
A watchdog group, the Sunshine Project, argues that the NAS violated the Federal Advisory Committee Act by withholding the public file. Colonel Fenton asked the academy to withhold and review the file in keeping with White House Chief of Staff Andrew Card's 19 March 2002 memorandum on safeguarding information regarding weapons of mass destruction and other sensitive documents related to homeland security. The colonel said he did not want to release documents that would give terrorists ideas for weapons that could be used against the United States.
The clearest indication that the NAS failed to balance security and openness was its suppression of clippings from Proceedings, the newsletter Inside the Navy, The Washington Post, and other publications. The academy unnecessarily extended secrecy around the public discourse on nonlethal weapons.
"It totally undercuts the credibility of their disclosure policy," said Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy. Everyone understands the need to withhold some information, but it is a "betrayal of the public trust" when that authority is employed unnecessarily, he said. Mr. Aftergood and others criticized the White House's push to safeguard sensitive but unclassified information, arguing the germane guidance is too vague. "This is a problem, because agencies may have many reasons for considering information sensitive that have nothing to do with national security," according to Aftergood.
In early 2002, the NAS released an index of the file's contents to the Sunshine Project, but balked when that group requested particular documents. When I visited the academy last summer, I brought a copy of the index downloaded from the Sunshine Project's internet site and also asked the academy for a current, complete list of the file's contents. The NAS gave me a list of only 45 documents that had been reviewed recently and released to the Sunshine Project. When I asked about missing documents, an academy staffer confirmed they were under security review; however, that information was not volunteered.
The absurdity of the situation crystallized when I checked the original lengthy list against the index of 45 documents and noticed two Inside the Navy articles were being withheld—one of which I had written based on an admiral's public testimony to Congress. When I questioned the disparity, an NAS staffer explained that my article was considered too sensitive for even my eyes. I thought this nonsense and immediately brought it to the attention of NAS's Bill Skane. Nonetheless, only months later—eight days after the study's publication—did the NAS send a letter to the assistant counsel at the Marine Corps Systems Command and to ONR, declaring that obviously public documents no longer would be withheld. The 12 November letter also urged the nonlethal weapons directorate to reach decisions on many other documents in limbo.
The NAS maintains it was required to withhold and review the file by a DoD contract that commissioned the NAS to begin the study in 2000. But a FACA expert I consulted, attorney Herbert Fenster, called the very concept of such a contract absurd. It is telling that the NAS did not ask anyone's permission when it finally declared that clearly public documents would be released. Why did the decision take so long?
Balancing Security and Openness
When national security is at stake, secrecy can save lives. But taken too far, or used indiscriminately, secrecy becomes meaningless and harmful. Mr. Skane maintains the NAS put security needs first. I would argue, however, that the agency overstepped its bounds. Instead of waiting until the first request was made, the NAS should have checked each document before it was placed in the public file. Once documents are designated part of a public access file, it seems reasonable to consider them in the public domain and to expect they will be available for inspection.
This case could set a dangerous precedent for all kinds of advisory panel reviews. According to Mr. Fenster, the academy almost certainly violated the FACA by suppressing the file's numerous briefings and previous studies about nonlethal weapons. Denied access to the file, the public was deprived of the opportunity to learn about issues underlying the study while it was ongoing and even after its publication. In addition, Mr. Fenster holds that access under the act is intended to be contemporaneous with the conduct of the advisory committee's work; absent prompt access, an important reason for the act is lost. "That reason for the statute is to insure that the work of a [federal advisory committee] does not go on in a vacuum but instead is made subject to 'sunshine' concepts that are built into the FACA," he explained.
How can the public have any confidence in a federal advisory committee's ability to comply with the FACA's disclosure requirements—especially when government documents are involved—if that committee hides the published journalism it consults when doing a study? Further, whenever a federal advisory committee hides facts reported in first drafts of history, it attacks the very institution of journalism. In our democratic society, it is wrong for the government to try to "stuff back into the bottle" the genie of reported news. If not purposeful suppression, it bureaucratic bungling of the worst kind.
Homeland Security Deputy Secretary Gordon England has praised the role of the press in our free society. "The military defends our freedom. Journalists maintain our freedom by defending the truth," said England (then Secretary of the Navy). National security safeguards should not suppress truth reported by the press or trample open government laws. Erecting an iron curtain between the government and the public is not the answer.
Christopher J. Castelli is the chief editor of Inside the Navy. He has won awards from the National Press Club and the Society of American Business Editors and Writers.