Congress gets involved after Indian Island court ruling

WASHINGTON — Congress is weighing into conflicts over military secrets and questions about when people have a right to know if nearby federal facilities pose a deadly threat.

New legislation follows a U.S. Supreme Court ruling that invalidated the U.S. Navy’s rationale for withholding specialized maps of Indian Island near Port Townsend. The maps describe blast zones surrounding the Navy’s ammunition depot on the island.

The House recently passed a bill that would create a new Department of Defense exemption under the Freedom of Information Act, the federal records law giving citizens the right to know about government operations. The Senate is working on a separate bill.

Open-government organizations in Washington state and across the country are expressing opposition or concern about the legislation.

“The Department of Defense is asking Congress to conceal all information related to explosives storage and handling,” said Toby Nixon, president of the Washington Coalition for Open Government. “But people should be able to know what risks are posed by storing powerful explosives in their communities, so that they can be fully prepared.”

The Navy contended in the court case that the maps could allow someone with ill intent to identify the exact locations where munitions are stored. But Navy officials say it would not be appropriate to comment on the pending legislation.

The proposed exemption — a provision of the National Defense Authorization Act — would grant the military a right to withhold “sensitive but unclassified information related to critical infrastructure ” when such information “may result in the disruption, degradation or destruction of operations, property or facilities of the Department of Defense.”

Unlike a similar provision approved by the Senate Armed Services Committee, the House version requires the Secretary of Defense to balance public interests. That is, before the secretary declines to release documents, he must find that the need to withhold the information outweighs the “public interest” that favors release.

An amendment proposed by Sen. Patrick Leahy, D-Vt., would similarly tighten up the exemption in the Senate bill.

Amy Bennett, an analyst with in Washington, D.C., said the military does not need a new exemption. It can mark documents “classified” or use one of the existing exemptions under federal law.

Furthermore, she said, amendments to the Freedom of Information Act should not be attached to a Defense bill.

“We think the administration should do some work to see what information needs to be protected,” she said. “We think this should go through the committees that have expertise with FOIA: the House Oversight and Government Reform Committee and the Senate Judiciary Committee.”

If the legislation does go through, she said, then it needs to balance the public’s right to know.

The Supreme Court ruling concluded that an exemption for “internal personnel rules and practices” was not a valid reason for the Navy to withhold the specialized maps of Indian Island. That exemption — the second in the law — was so commonly used by federal agencies that it was given a nickname: “High 2.”

In an opinion supporting the overall ruling, Supreme Court Justice Samuel Alito suggested that the Navy use Exemption 7, which protects “information compiled for law enforcement purposes.” The exemption could be applied if the release of records “could reasonably be expected to endanger the life or physical safety of any individual,” he said.

The maps of Indian Island depict distances where damage could result from hypothetical explosions at locations where weapons, ammunition and explosives are stored.

Glen Milner, a Seattle resident who requested the maps and eventually won the Supreme Court case, said he expects the Navy to continue to resist release of the maps. It’s not out of concern about public safety or the risks of terrorism, Milner claims. It’s because the Navy does not want to deal with the worries of average people.

“Let’s use some common sense,” he said. “If a terrorist wanted to inflict the most damage, they would know where the greatest amount of explosives are already. It’s at the explosives handling wharf. The arc maps wouldn’t mean anything to them.”

On the other hand, he said, the maps are likely to show that more explosives are being handled at Indian Island than ever before. The community was told years ago that the maximum explosive power at the docks would never be more than an equivalent of 2.25 million pounds of TNT, he said. But Milner has obtained documents showing that the Navy increased that to an equivalent of 3 million pounds.

Jefferson County resident Doug Milholland has submitted a petition with more than 400 signatures, asking Washington’s U.S. senators — Democrats Patty Murray and Maria Cantwell — to oppose the Senate language as it is written. Milholland also is asking the Port Townsend City Council and Jefferson County commissioners to take a stand against the bill.

Based on rough estimates, Milholland claims that a massive explosion at Indian Island might be enough to shatter windows at Jefferson General Hospital in Port Townsend. If the Navy were required to share that information, he said, the hospital might choose to replace some of its windows with stronger glass.

“Basically, a local community is being asked to take risks about what is going on in the ammunition-transfer business without knowing what the risks are,” he said. “The base at Indian Island has residential communities less than two miles away. We are at risk.”

Milholland said he grew up near Hanford in Eastern Washington, where the federal government refused to tell local residents about secret radioactive releases until many years later, when the Freedom of Information Act was brought to bear.

“There were downwinders all over the place exposed to thyroid-damaging radiation,” he said. “People didn’t have a chance to respond.”

Many Eastern Washington residents are now living or dying with tumors, he said, and the damaging effects of government secrecy abound throughout the nation.

“My initial concern was not about the Freedom of Information Act,” Milholland said. “I’m very happy to be a bit player in this major drama. It is a national action, though we have many local concerns.”

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