Actions to Close Government

Last updated: January 22, 2009

Sensitive But Unclassified Information

Retroactive Classification of Information The Department of Justice has blocked former FBI translator Sibel Edmonds from testifying in a lawsuit related to September 11 and has classified records she gave to Congress in 2002 retroactively concerning documents relevant to the September 11 attacks that were available to the FBI prior to the attacks. F.B.I. officials gave Senate staff members two briefings in June and July of 2002 concerning Ms. Edmonds, who said the FBI's system for translating intelligence was so flawed that the bureau missed chances to spot terrorist warnings.

The FBI now maintains that some of the information discussed was so potentially damaging if released publicly that it is now considered classified, according to a memorandum distributed in May 2004 within the Senate Judiciary Committee.According to that memo, "Any staffer who attended those briefings, or who learns about those briefings, should be aware that the FBI now considers the information classified and should therefore avoid further dissemination.” Even routine and widely disseminated information - like where she worked - is now classified.

The decision was apparently made by the Department of Justice, not the FBI.According to a report in the New York Times on May 20th, an FBI official claimed that they are "not imposing a gag order. The problem is that while these pieces of information may look innocuous on their own, you put them all together and it reveals a picture of sensitive intelligence collection, and that's a security problem.''

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Classification Of Compilations Of Unclassified Information

The classification of a collection of unclassified items, while counterintuitive, is authorized in the governing executive order on classification:

"Compilations of items of information that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that: (1) meets the standards for classification under this order; and (2) is not otherwise revealed in the individual items of information." (Executive Order 13292, sect. 1.7e).

See " Classification of Compilations of Information" (PDF)

Sensitive Homeland Security Information

The Homeland Security Act requires procedures to promulgate for "safeguarding" a vaguely defined set of information, “Sensitive Homeland Security Information,” and sharing it among firefighters, police officers, public health researchers and federal, state, and local governments. These procedures are likely to also provide guidelines for Sensitive But Unclassified information (see Card Memorandum below).

The concept of SBU has been around for quite a while, but each different agency that uses it applies a different meaning. The Act created a sub-branch (SHSI) that is intended to be used to restrict general access to government information relating to “terrorism,” or that a “terrorist” or “terrorist organization” could use to carry out a “terrorist activity.” None of these terror-related categories are defined in the Act. The USA PATRIOT Act has some definitions of these categories; they are, unfortunately, circular (e.g., a terrorist is someone who commits a terrorist act). Nor is “sensitive” defined.

The result is that virtually any type of information conceivably related to terrorism-which, under certain circumstances, is virtually any type of information-could be swept out of public access. Examples include the local sheriff’s duty roster, the rusty spans of a railroad bridge, sports schedules, environmental information, water supply information, much of the information routinely put out by many government agencies.

A complicated system -- at the heart of which are Non-Disclosure Agreements (NDAs) -- is pointed to in the Act. It will regulate how information gets into the system-and how (and if) it could get out of the system-and what people have to do to get it and use it. Because of the complexity of the system, and the potential expanse of information and persons covered, the risks are extremely high that the public will be excluded even when they need the information-and even medical personnel and others on the front line may not be able to get it on a timely basis. The statute dictates that SHSI be controlled so that delivery of information can be restricted “to specified subgroups by geographic location, type of organization, position of a recipient within an organization, or a recipient’s need to know such information.” Because SHSI is not classified, it is not subject to declassification. It is SHSI until the federal agency that designated it as SHSI removes that status.

In the fall of 2002, ALA and others met with the Office of Management and Budget (OMB) about their plans to issue guidance on the "sensitive but unclassified" category presented in a March 19, 2002 memorandum from the Department of Justice and the Information Security Oversight Office (ISOO).On August 26, 2003, seventy-five organizations representing librarians, journalists, scientists, environmental groups, privacy advocates, and others sent a letter to Homeland Security Secretary Tom Ridge calling on the Department of Homeland Security to allow public input on the procedures.

The letter expresses concern that the procedures may cut out of the public domain a broad swath of information that is not classified but which may be perceived as "helpful to a terrorist or potentially helpful in responding to or preventing an unknown future attack." - including such items as maps of environmental contamination. The signatories are also concerned that the procedures would subject millions of persons inside and outside of government to non-disclosure agreements and impose criminal penalties for disclosing information improperly. The procedures could, moreover, cut out the ability of journalists, community groups, and others to inform the public of activities of federal, state and local governments.

Joint letter to Secretary Tom Ridge (27 August 2003) ( PDF)

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Assistant to the President and Chief of Staff, Andrew H. Card Jr., Memorandum

On March 19, 2002, a memorandum "regarding the safeguarding and protection of sensitive homeland security information" was issued to the heads of all federal departments and agencies by the White House Chief of Staff, Andrew H. Card, Jr. Along with the  "Card memo" was a memorandum from the  Information Security Oversight Office and the Office of Information and Privacy providing guidance on taking action to "Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security."

This second memorandum resurrects a category of information first proposed by Adm. John Poindexter during the Reagan Administration, "sensitive but unclassified."  ( "'Sensitive But Unclassified' and Other Federal Security Controls on Scientific and Technical Information: History and Current Controversy" (PDF) by Genevieve J. Knezo, Congressional Research Service, April 2.)

As yet, no explicit definition has been given to this category. This will, however, occur in the guidelines for Sensitive Homeland Security Information.In the absence of specific guidelines, agencies are likely to err on the side of caution and withhold or decline to disseminate information that could conceivably be related to "homeland security" (which is similarly defined).

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Homeland Security Act of 2002 (P.L. 107-296)

Critical Infrastructure Information Protection

On November 22, 2002, Congress passed H.R. 5005, the Homeland Security Act of 2002 to create a Department of Homeland Security. It was signed into law (Public Law 107-296) by President Bush on November 25th. The law includes a provision (Sec. 204) that will create a broad exemption from the Freedom of Information Act: "Information provided voluntarily by non-Federal entities or individuals that relates to infrastructure vulnerabilities or other vulnerabilities to terrorism and is or has been in the possession of the Department shall not be subject to section 552 of title 5, United States Code" (the Freedom of Information Act).

Other provisions will:

  1. allow the private sector, on its own say-so, to designate a very broad array of voluntarily-submitted information as prohibited from disclosure under this law;
  2. prevent the public, other federal agencies, state and local officials from access to a wide range of information about risks and vulnerabilities in "infrastructures"- including computer-related systems, physical plants and structures, and emergency services;
  3. give immunity from civil litigation for such voluntarily-disclosed information; and
  4. criminalize disclosure of such information.

On June 16, 2003, the Washington Office submitted comments ( PDF ) on behalf of ALA on the proposed implementation by the Department of Homeland Security of the critical infrastructure information protection provisions of the Homeland Security Act.

A broad coalition opposes weakening the Freedom of Information Act. Groups opposing new secrecy provision include library organizations, environmental groups, civil liberties groups, open-government groups, and press organizations. They include:

American Association of Law Libraries
American Library Association
American Society of Newspaper Editors
Association of Research Libraries
Center for Democracy and Technology
Electronic Privacy Information Center
Environmental Defense
National Environmental Trust
National Newspaper Association
Natural Resources Defense Council
Newspaper Association of America
OMB Watch
Radio-Television News Directors Association
Reporters Committee for Freedom of the Press
The Society of Professional Journalists
U.S. Public Interest Research Group

OMB Watch has posted all the comments received by DHS  here.

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Attorney General Ashcroft's Memorandum Restricting FOIA

On October 12, 2001, Attorney General John D. Ashcroft issued a new policy statement, on behalf of the Bush Administration, directing federal agency heads to exercise "full and deliberate consideration of the institutional, commercial, and personal privacy interests" before disclosing information, and careful consideration of threats to national security and the effectiveness of law enforcement in responding to FOIA requests in releasing records to journalists and others under provisions of the Freedom of Information Act (FOIA). 

The policy supercedes a 1993 memorandum issued by Attorney General Janet Reno, which ordered that agencies should make allowable discretionary disclosures except where there was demonstrable harm. Ashcroft promised the full backing of the Department of Justice to those agencies that legitimately decide to turn down requests made under FOIA.

2001 Ashcroft Memorandum  1993 Reno Memorandum 

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Executive Order 13233, Restricting the PRA, 2001

Executive Order 13233 effectively denies the public’s legitimate right of access under the PRA by giving an incumbent or former president veto power over any public release of materials by the Archivist even after the 12-year restriction period had expired. Specifically, it:

Expands the former president's asserted constitutional privileges. [Section 2(a)]

States that the former president's constitutional privileges include not only the privilege for confidential communications with his advisers that has been recognized by the Supreme Court, but also the state secrets privilege, the attorney-client privilege and attorney work product privileges, and the deliberative process privilege.

The attorney-client and attorney work product privileges are clearly common-law, not constitutional privileges, as is the deliberative process privilege (to the extent it would go beyond the privilege for confidential communications between the president and his advisors). Additionally, there is no precedent for invocation of the state secrets privilege by a former president, as opposed to the incumbent.

Requires a party seeking access to presidential records to assert a "demonstrated, specific need" for those records, even after the end of the 12-year period, in order to overcome the former president's privilege. [Section 2(b)]

This provision is contrary to the PRA, which makes access to these records available under FOIA standards. These standards require no such showing of need. The concept that the constitutional executive privilege requires a person seeking access to historical presidential records to make a showing of need was rejected by the US Court of Appeals for the D.C. Circuit in Nixon v. Freeman, 670 F.2d 346 (DC Cir.), cert. denied, 459 US 1035 (1982).

Provides both a former president and the incumbent president an unlimited amount of time to review records to determine whether to object to their release to the public. [Sections 3(a) and 3(c)]

These provisions are contrary to the PRA's requirement that the Archivist make such materials available to the public at the earliest possible date.

Requires the incumbent president to "concur in" and support in court an assertion of privilege by the former president, regardless of whether it is legally valid, unless there are compelling circumstances. [Sections 3(d) and 4]

Even if the incumbent president does not concur in a former president's assertion of privilege, the order requires the Archivist to bow to the former president's claim and withhold public access to any records to whose release the former president objects.These provisions are contrary to the PRA insofar as they require the Archivist to withhold documents from the public without determining the validity of the former president's claim of privilege. See Public Citizen v. Burke, 843 F.2d 1473 (DC Cir. 1988).

Empowers the incumbent president to order the Archivist to withhold access to the former president's records on grounds of privilege even if the former president does not object to their being made public, and even in the absence of any claim that national security would be affected by public release. [Section 3(d)(2)]

Outside of the realm of national security, there is no precedent for an assertion of executive privilege by a sitting president as to 12-year-old records of a former president.

Permits a former president (or his family) to designate a "representative" to assert constitutionally based executive privileges in the event of the former president's death or disability. [Section 10]

This provision allows for potentially eternal withholding of records. There is no precedent supporting the notion that a private citizen "representing" a deceased or disabled president can assert the constitutional executive privilege.

Allows a former vice president to assert constitutionally based privileges to bar release of records after the end of the 12-year restriction period applicable to his records under the PRA.

There is no precedent supporting the concept that there is a constitutional privilege protecting vice presidential communications (except insofar as they may fall within the president's executive privilege).

The Executive Order was issued on November 1 st. Representative Stephen Horn held a hearing on November 6 th. The American Historical Association and others filed suit against the National Archives on November 28, 2001. As this issue is important to libraries, it is likely, should this suit go to an appeals process, that ALA would consider filing a “friend of the court” ( amicus curiae) brief. The suit is still pending.

In October 2002, the House Committee on Government Reform unanimously approved legislation first introduced by Rep. Stephen Horn and co-sponsored by 44 other legislators, including 37 Democrats, 1 Independent, and 6 Republicans (including House Government Reform Committee Chairman Dan Burton) that reinforces implementation of the Presidential Records Act of 1978.In a letter to the Committee, the White House attacked the bill as "unnecessary and inappropriate, and, more importantly, unconstitutional."

The Administration claimed that the Reagan Presidential records have been released, showing the bill is not needed. While the Administration is correct about the Reagan-era records, the records of the first Bush Administration are scheduled to be released in less than two years. Policy papers and "confidential advice" offered to the President by a number of high-profile public officials in the current Administration, including Vice President Dick Cheney, Deputy Defense Secretary Paul Wolfowitz, and Secretary of State Colin Powell will be subject to release.

In a letter to Representative Stephen Horn (see below for pdf version), dated November 20, 2001, ALA, AALL, ARL and the National Humanities Alliance noted that Congress enacted the Presidential Records Act (PRA) of 1978 to ensure that the public records of our presidents are government property and, therefore, belong to the American people.We also anticipate that legislation will be introduced in 2002 to address the Executive Order's impact on the PRA.For further information, go to the following links:

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Leaks Criminalization, 2001

This provision was part of the Intelligence Authorization Act for Fiscal Year 2001. The entire bill was vetoed by President Clinton in November 2000 because of this provision. In 2001, the primary proponent of this provision, Senator Richard Shelby, indicated his intention to attach it to the 2002 Intelligence Authorization Act.

To date, no new provisions have been introduced. This is largely due to the apparent success of ongoing, non-public discussions among representatives of the publishing community and representatives of the federal national security infrastructure. These discussions grew out of the previous successful efforts by the public interest coalition, including ALA, working in conjunction with press organizations to stop the legislation in 2001.

Go to the  OMB Watch web site to learn more about the "Official Secrets Act."

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