‘Securing’ the Public with Secrets

Judicial deference to the government’s widespread claims of national security is keeping unclassified records from public view

From the Fall 2003 issue of The News Media & The Law, page 34.

By Rebecca Daugherty

Wanting to know what would happen if the Glen Canyon Dam in Arizona burst, a small environmental group filed a Freedom of Information Act request in September 2001 for the federal government’s projections as to where the renegade waters would go. If the dam should falter, its downstream flow would not only jeopardize the nearby Hoover Dam but waterworks beyond, flooding or destroying communities along the way.

But the Bureau of Reclamation, which creates the “inundation maps” projecting what might happen, denied the request. And in March, the federal district court in Salt Lake City upheld the denial.

Judge Tena Campbell ruled that the government could withhold the unclassified maps under an exemption to the FOI Act for “law enforcement” records because terrorists might make use of the information. One arm of the law enforcement exemption protects against release of information that might help anyone circumvent the law, which Campbell said applied here.

That decision is one of three since the events of Sept. 11, 2001, that defer to the government’s pleadings that “national security” interests excuse agencies from giving out records — even when they cannot use the exemption to the FOI Act that is specifically designed to protect national security, or the other far-reaching protection for national security information, a law that protects intelligence sources and methods.

The first FOI Act exemption only covers records that are properly classified in the interest of national security or foreign policy. To classify records, the exemption requires agencies to follow a set of formal procedures laid out in an executive order.

Yet in these three cases the government has used a “national security” excuse to invoke the law enforcement exemption to the FOI Act, denying information that would have likely been released if the government had not played the “terrorist” card to justify use of the exemptions.

Together they demonstrate the breadth of denials in which national security trumps government transparency due to the tenor of the times. With no end in sight to the war on terrorism, the judiciary’s deference to administrative secrecy could conceivably trouble FOI requesters for some time to come.

Examining the U.S. Customs Service

In 1998, Coastal Delivery Corp. successfully sued a warehouse for breaking a contract that made the trucking company the exclusive carrier of its cargo which had to be delivered to a U.S. Customs Service examination station at the Los Angeles/Long Beach port. But in order to recover damages, Coastal Delivery needed to know how often the agency’s contraband enforcement team examined containers.

The company asked for the records in October 2001 for use in its complaint, but never got them. Coastal Delivery brought suit against the Customs Service, and again walked away empty-handed.

Coastal Delivery could not have the information, U.S. District Court Judge Matthew Byrne in Los Angeles wrote in March, because “terrorists and others could use the information to discover the rate of inspection and then direct their containers to vulnerable ports.” Knowing where the government is lax in its examinations, Byrne reasoned, might tell terrorists how vulnerable some seaports are.

The parties in Coastal Delivery Corp. v. U.S. Customs Service agreed that the purpose of the request made no difference in determining whether information would be available. A reporter hoping to evaluate how thoroughly the Customs Service checked containers would also not be able to see the records under this decision, which was not appealed.

Secretly Detained

Twenty-one public interest and human rights groups have petitioned the U.S. Supreme Court to hear arguments that the government should be required to release the names of hundreds of detainees jailed after Sept. 11, 2001.

The Center for National Security Studies, an advocacy and research group in Washington, D.C., has taken the legal lead on behalf of the organizations, including The Reporters Committee for Freedom of the Press, that are suing the government for the records.

In its request for review, the groups wrote the purpose was “to make clear that a national security crisis is no justification for courts allowing the Government to evade so easily its responsibilities under FOIA — and that courts cannot ignore the vital countervailing interests at stake such as the individual rights petitioners here seek to enforce.”

For the divided appeals panel in Center for National Security Studies v. Department of Justice, decided in June 2003, Judge David Sentelle wrote that the judiciary would defer to the government’s expertise in a “national security” probe. The Justice Department is in a better position than the court to know what should be withheld in a terrorism investigation, the judge wrote, in reversing a lower court. His opinion triggered a lengthy and pointed dissent by Judge David Tatel.

The majority’s approach “drastically diminishes, if not eliminates” the judiciary’s role in FOI cases involving national security, Tatel said.

Fighting an Upstream Battle

“If we had gone forward on this prior to 9/11 it would have been a slam dunk,” said Owen Lammers, executive director of the environmental group Living Rivers in Utah and Arizona

What public interest groups throughout the nation are quickly learning, however, is that policies resulting from the never-ending war on terrorism have done significant damage to the idea of public accountability.

Lammers says his organization wanted copies of the Bureau of Reclamation’s inundation maps because it hoped to show the value of decommissioning certain dams in Arizona. The structures are inherently unsafe, he said, and they are far more expensive to maintain than to decommission.

To highlight his point, Lammers says the Glen Canyon dam nearly failed in 1983, as rainfall almost caused the reservoirs to top off and spillways were damaged. Because there are a number of dams along the Colorado River, catastrophic failure of one can affect others. Water from a breached Glen Canyon Dam could flow downstream, flood Lake Mead and possibly breach the Hoover Dam, which holds back the lake.

“It would be quite a scene,” Lammers said.

But the government had little interest in allowing Living Rivers to make the projections public. In Living Rivers v. the Bureau of Reclamation, the court deferred to the government’s claim of national security interests in not releasing the unclassified material. Living Waters did not appeal, but that does not mean the organization agreed with the rationale.

Lammers says if terrorists succeeded in breaching a dam of the magnitude of Glen Canyon or Hoover, the inundation maps would have made little difference. The maps, Lammers says, do not show how to carry out an attack on the dam.

“We are trying to point out that a couple of these facilities could fail on their own,” he said. “Most states require that inundation maps be public. But the federal government says that it doesn’t have to give these out.”

Furthermore, says Living Rivers attorney Joro Walker, if people knew the risks, they could better equip themselves against future danger. Instead, notes Walker, the government is saying, “You don’t have to worry about it, we have a plan.”