Pentagon seeking congressional approval to continue hiding unclassified documents from the public

Mark Frerichs, a contractor from Illinois, poses in Iraq in this undated photo obtained from Twitter that he would include with his resume when job hunting. Frerichs was abducted in Afghanistan in January 2020. (Twitter via AP)

John M. Donnelly, CQ-Roll Call

Pentagon leaders are asking Congress to expand the kinds of unclassified information about military operations that the department can withhold from the public, continuing what has been an annual tradition for seven years and spanning three administrations.

Officials with the Pentagon general counsel’s office are requesting that the Armed Services committees, in writing the fiscal 2022 defense authorization bill, prescribe changes to the Freedom of Information Act that would limit public access to certain data.

If such a new law is not enacted, it could lead to the disclosure of information that adversaries can use against U.S. troops, whose lives could consequently be “seriously jeopardized,” as could “defense of the homeland,” the officials said in a report to Congress on Monday.

But transparency advocates are assailing the proposed legislation as an indefensible restriction on the Freedom of Information Act.

Patrick J. Leahy, D- Vt., the most senior senator and chairman of the Appropriations Committee, told CQ Roll Call he continues to oppose what he called an “anti-transparency” proposal.

“I’ve lost count how many times that the Defense Department has come to Congress with this overbroad proposal to shield vast amounts of Pentagon information from public disclosure through the Freedom of Information Act,” Leahy said in a statement. “This version of DoD’s proposal contains the same fatal flaw as did previous ones: There are no clear limits on what kinds of information the Pentagon could hide from public view.”

A 2011 judicial decision made it harder for the Defense Department to withhold certain unclassified information that officials believe is important to protect, the Pentagon general counsel’s analysis said.

The Supreme Court ruled in Milner v. Department of the Navy that the government could not withhold information about military explosives storage sites by citing a certain FOIA exemption because, the court found, that exemption only protects data about personnel.

For years, the Pentagon had used that exemption to withhold certain information about how the military conducts its operations.

The defense authorization law for fiscal 2012 responded to the court decision by allowing the Pentagon to withhold records that could reveal vulnerabilities in critical infrastructure.

For the last half-dozen years, the Pentagon has tried to change the law further: to restore officials’ ability to restrict public access to military information beyond infrastructure records.

At issue is what the June general counsel report called “military tactics, techniques, and procedures (TTPs); rules for the use of force; and rules of engagement that, if publicly disclosed, could reasonably be expected to provide an operational or tactical military advantage” to an adversary.

“From this,” the officials wrote, “the defense of the homeland, success of the operation, and the lives of U.S. military forces would be seriously jeopardized.”

Cyber operations, in particular, could be adversely affected if the law is not changed, the attorneys contended.

“This proposal would add a layer of mission assurance to unclassified cyber operations and enhance the Department of Defense’s ability to project cyber effects while protecting national security resources,” it said.

The Pentagon did not provide any examples of information that officials believe was harmfully disclosed since 2011 and that should have been kept from the public.

The proposed change would also permit the Pentagon to withhold not only information about vulnerabilities in critical infrastructure, as the law now says, but also data that officials believe could reveal “capabilities” of such infrastructure — a much broader scope.

For most of the past six years, the Pentagon request to keep more information from public view has died a quiet death in committee. But in 2016, the Senate Armed Services Committee included a version of the Pentagon proposal in its fiscal 2017 defense authorization bill, although the provision was later removed when a House-Senate conference wrote the final measure.

A coalition of nearly three dozen groups that favor a more open government — including the Project on Government Oversight, OpenTheGovernment.org and the American Civil Liberties Union — has fought against the Pentagon’s FOIA proposal. These groups have contended that the current law’s existing exemptions from public disclosure laws are sufficient — including those for information that is classified or for data that is deemed internal to a federal department or agency.

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And if the FOIA law needs to be updated, the groups have argued, panels such as the Senate Judiciary Committee or the House Oversight and Reform Committee should debate them, not the Armed Services panels.

The Pentagon’s proposal is too broad, the coalition wrote in a 2016 letter to Senate leaders. Withholding unclassified information on imprecise grounds “could be used to conceal information about the military’s interrogation and treatment of prisoners, its handling of sexual assault complaints, its oversight of contractors, its drone program, and other matters of compelling public interest,” they wrote.

The department’s lawyers, in their new analysis for Congress, argued that the stricter withholding rules would not be abused.

“It is important to note that the terms tactics, techniques, and procedures, as used in the context of this proposal, will not be applied in an overly broad manner to withhold from public disclosure information related to the handling of disciplinary matters, investigations, acquisitions, intelligence oversight, oversight of contractors, allegations of sexual harassment or sexual assault, allegations of prisoner and detainee maltreatment, installation management activities, etc.,” they wrote. “However, depending on the nature of the information, other provisions of law may require that such information not be released publicly in whole or in part.”

Open government advocates are not sanguine about the Pentagon’s ability to get that balance right.

“It is foolish to trust the Pentagon at their word that they would not abuse a new exemption from public records requests,” Mandy Smithberger, who closely monitors this and other defense issues for the Project on Government Oversight, told CQ Roll Call in an email this week.

Whatever the Freedom of Information Act rules will be at the Pentagon, the department is not responding in a timely manner to requests for information from the public anyway, she said. At the end of fiscal 2020, the Pentagon still had 16,000 overdue requests, a 21 percent increase from the year before.

“Congress has repeatedly made clear, on a bipartisan basis, that the Pentagon must be more open and transparent with the public,” Smithberger said. “The Department needs to accept that they have lost this fight and should instead shift their resources to being more responsive to the press and the public.”

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