Congress appears ready to grant the Pentagon another exemption to the Freedom of Information Act, according to internal Defense Department documents.
The exemption, which would shield unclassified but non-public “military tactics, techniques and procedures” from disclosure was proposed last year, but was kept out of the 2016 defense policy bill by lawmakers, the memo noted, “due to jurisdictional concerns and process issues (but not content issues).”
National security researcher Steven Aftergood, who reported on the “planning documents,” said Wednesday that the administration is going to ask Congress again this year for the FOIA loophole.
The Pentagon claimed it was able to effectively withhold the tactical information until a 2011 Supreme Court decision. That ruling narrowed the government’s interpretation of the exemption “related solely to internal personnel rules and practices.”
Pro-transparency advocates, however, have said that the decision merely led government agencies to cite other exemptions when processing FOIA queries. Glen Milner, the plaintiff in the 2011 dispute (Milner v. Dept. of Navy), for example, never received the sensitive-but-unclassified information he wanted–about the possible danger posed to the Puget Sound area of Washington State by a Dept. of Defense munitions storage facility.
“Additionally, Congress passed a law in direct response to Milner that allows the US Department of Defense to withhold ‘critical infrastructure security information,’” Reporters Committee for Freedom of the Press has noted. “The maps Milner had sought all along were labeled as such by the military and were never released.”
The Pentagon argued that the exemption is required to prevent enemies from “having knowledge of how US military forces will be used,” but Aftergood said that it will most likely do no such thing.
“[G]iven the realities of government information security today, any prudent military commander would have to assume that the adversary already possesses the unclassified military doctrine documents that the exemption would protect from public disclosure,” he wrote. “The government has repeatedly been unable to protect many types of information of much higher sensitivity.”
Aftergood also noted that the Pentagon last year asked Congress to pass a law reversing the Milner decision, and that the administration will again press this year for similar legislation. The initiative “with its government-wide implications” is being overseen by the Department of Justice.
