What? Why? Twisted...

[agamemnus]

http://www.foxnews.com/politics/2011...nce-sensitive/

Excerpt:

Justice Department Proposes Letting Government Deny Existence of Sensitive Documents
By Shannon Bream, October 26, 2011

A longtime internal policy that allowed Justice Department officials to deny the existence of sensitive information could become the law of the land -- in effect a license to lie -- if a newly proposed rule becomes federal regulation in the coming weeks.

The proposed rule directs federal law enforcement agencies, after personnel have determined that documents are too delicate to be released, to respond to Freedom of Information Act requests "as if the excluded records did not exist."

...?

[wiggin]

To be honest, while I imagine there are lots of ways this can be abused, it makes a lot of sense. Even acknowledging the existence of specific documents could imperil their secrecy.

Let's imagine that the US government has a clandestine program to assassinate terrorist leaders (imagine, hell!). Supposing that they carried out an assassination in the capital of a large, friendly nation - say, Paris. Let us suppose that there was a way to tie the existence of a document to the fact that this strike was ordered (I don't know, minutes of a meeting of the Joint Chiefs on a day they weren't supposed to be meeting, or a codename that has been leaked or something). Denying that the document exists at all might be necessary for plausible deniability, no?

[Aimless]

I was going to post the Wired article: http://www.wired.com/threatlevel/201...ce-foia-lying/


Protecting national security is understandable. I just hope this won't be [ab]used to enable dangerous and unnecessary coverups.

[agamemnus]

To be honest, while I imagine there are lots of ways this can be abused, it makes a lot of sense. Even acknowledging the existence of specific documents could imperil their secrecy.

Let's imagine that the US government has a clandestine program to assassinate terrorist leaders (imagine, hell!). Supposing that they carried out an assassination in the capital of a large, friendly nation - say, Paris. Let us suppose that there was a way to tie the existence of a document to the fact that this strike was ordered (I don't know, minutes of a meeting of the Joint Chiefs on a day they weren't supposed to be meeting, or a codename that has been leaked or something). Denying that the document exists at all might be necessary for plausible deniability, no?

Leads to a Jason Bourne type world, however. If it gets to the point where a reporter knows the codename of something, they could simply say it is classified if it actually IS classified. You just know that this kind of law will not only be abused by the feds, but in large measure by state and local governments unwilling or too lazy to provide documents.

[wiggin]

Agreed on the abuse line, but it's tough to know how to properly balance these two needs.

[LittleFuzzy]

I was going to post the Wired article: http://www.wired.com/threatlevel/201...ce-foia-lying/


Protecting national security is understandable. I just hope this won't be [ab]used to enable dangerous and unnecessary coverups.

Protecting national security is understandable and is not an irrational choice. It is, however, still a wrong one in this case, more so than the alternative choice, IMO. Governments like secrecy, it makes their work SO much easier, but they shouldn't be allowed to have much of it. The primary reason it makes their work easier is because it protects them from interfering oversight seeking to make sure the work is what we WANT the work to be.

Even if none of that were true, the US government these days has a demonstrably bad culture wrt trying to classify everything. This is not a tool they can handle responsibly right now.

[Aimless]

Agreed on the abuse line, but it's tough to know how to properly balance these two needs.

And that difficulty will lead to govt. officials erring "on the side of caution" and thus hiding too much information. You'll end up protecting national security at the expense of democracy and possibly global security. We'll be reliant on goons like Wikileaks for reliable information. We won't even know what there is to know, what there is to wait around for.

I am in fact wholly in agreement with Fuzzy and when I said I hope it won't be abused I was itching for a suitably skeptical smiley. It will be abused, just as the system of classifying documents already is, only with far less hope of unearthing the information.

[wiggin]

I definitely get it, but I can also imagine a lot of cases where denying the existence of certain information would be a very important bit of national security.

Our 'black' budget is similar - we authorize X billion dollars (somewhere on the order of $50 billion+) that don't have any line item and leave it up to the executive and the relevant departments to make sure they're using it appropriately. Granted, there is some level of oversight (some members of congressional committees are privy to details of intelligence/etc. activities), but I'm sure there are a lot of things put into that budget that don't strictly need to be there. Doesn't mean that there shouldn't be at least the possibility of hiding budget items.

Perhaps the best way to address this it to have a medium sort of transparency. The government should disclose how many documents (or requests, or whatever) are being categorically denied, rather than which ones they are. That can give a sense of whether things are getting out of hand. I imagine it's also possible to set up some sort of oversight - either through the courts (the gov't has to prove convincingly to a judge that mentioning the existence of said documents is dangerous, though of course even the existence of that legal proceedings would need to be secret), Congress (some classified oversight committee that can review rejected FOIA requests and hold agencies to account), or something in the executive (interagency oversight committees that systematically address these concerns). Nothing's perfect, and I'm sure there would be abuses, but not allowing the practice at all might be a very bad idea.

[Loki]

As Fuzzy says, the only one abusing the current document classifying process is the government, not the people requesting it under the FOIA. I see no reason to give the government even more incentive to abuse that power. I don't think you realize what kind of mundane stuff the government believes should never see the light of day (let alone the incriminating stuff).

[Lebanese Dragon]

I think in the cases where it's absolutely neccessary to lie about certain documents the governemnt already does.. lies to the public and to parts of itself. But in most cases just not defining it should be sufficient. I don't see this law of the land as neccessary. The people who do lie already do, and this will just give liscence for people with worse judgement to find justfication for lying.

[Dreadnaught]

I agree with Fuzzy and Loki that this isn't a great idea. I candidly don't know much about Freedom of Information Act requests, but I imagine documentation requests for seriously super-secret programs can be deflected without specifically confirming the existence of said program. Which is probably significantly buried in the first place.

But the ranks of people with "security clearance" in our government has swelled preposterously over the past decade, as has the amount of material deemed classified. A pendulous government with millions of workers will inevitably run into a situation where people will take FOIA requests as a threat to their job and pursue any avenue to protect themselves.

[CitizenCain]

<sigh>

Government.

Proposing a law to allow them to lie about compliance with another law... ugh.