Defense Department is hoping the third time’s the charm as it once again asks for the authority to withhold from the public certain military tactics, techniques and procedures , the disclosure of which would give an adversary an advantage. The proposal (Sec. 1003 of DoD’s draft legislation), which the Defense Department would like included in the defense authorization bill for fiscal year 2018, is narrower than proposals it has put forward the last two years.
Previous proposals would have allowed the Pentagon to withhold anything “relating to” such tactics, techniques and procedures. That broad, vaguely worded language could have allowed the Defense Department to hide information held by the government on widely covered problems such as mis-wired showers electrocuting soldiers on military bases, sexual assault in the military, friendly fire incidents at checkpoints (such as the one that killed former NFL star Pat Tillman), and more, as our coalition argued last year in testimony to the Senate Judiciary Committee at a hearing celebrating FOIA’s 50th anniversary.
One of the more confounding aspects to our work monitoring and addressing threats to open government is trying to read legislative text and understand the intent behind it. Those who propose secrecy statutes — legislation that would create a carve-out exempting information from disclosure under FOIA — oftentimes do so without adequately explaining what information they think they are protecting, why they need to protect it and why existing legal protections are inadequate.
Since the Supreme Court said in 2011 that agencies could no longer deny FOIA requesters on the grounds that such disclosure could allow someone to circumvent laws or regulations, we have trying to understand what agencies, the Defense Department in particular, are afraid could be disclosed and cause harm.
Last month, representatives of the Defense Department met with congressional staff and representatives of outside groups to discuss the proposed exemption and to hear why the Defense Department feels it needs the exemption.
We discussed the distinction between the tactics, techniques and procedures that soldiers are trained to implement in the field and the need for the public at times to have factual accountings of events. There appeared to be agreement in concept that factual information about events that happen should not be covered by any new exemption from disclosure, but specific training on techniques and battlefield tactics if disclosed may endanger troops.
Reflecting that sentiment in writing could prove a challenge, but the fact that such a meeting took place — where we could ask questions, hear what the Defense Department hoped to accomplish, raise some of our concerns, and listen is a step forward in the effort to draw better lines where our democracy’s presumption of disclosure ends and the need for secrecy begins.