CASE CLOSED … what really happened in the 2001 anthrax attacks?

* NAS has still not provided any legal justification for its decision to withhold and sequester FBI-submitted documents related to the NAS review of the FBI’s anthrax science

Posted by DXer on October 30, 2009

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NAS has still not provided any legal justification

for its decision to withhold and sequester

FBI-submitted documents related to

the NAS review of the FBI’s anthrax science

******

LMW 10/30/09 email to the Deputy Executive Director &
Director of Media Relations, Office of News & Public Information
National Academy of Sciences

On September 4, 2009, you emailed me as follows …

“Lew, the NAS is a nonprofit private institution that operates under a congressional charter and the Section 15 of the Federal Advisory Committee Act which requires that material presented to our committees as part of their data gathering go in our Public Access Office files. Some material given to the anthrax committee is already in that file and I’ll ask someone from public access to send you link to list. However, the FBI case documents periodically being given to the committee will not go in the public access file until the end of the study.”

I have been asking you for the past two months to provide legal authority for the decision to sequester and withhold FBI-submitted documents until the end of the study. You have indicated twice that you had referred the matter to NAS counsel.

Now we have the NAS/FBI contract document, which provides no legal justification for withholding the FBI-submitted documents until the end of the study or for failing to provide the specific exemptions for any documents NAS is currently withholding.

Could you please provide an update on current NAS intentions by answering the following questions …

Temporarily withholding FBI-submitted documents until the end of the study.

  • Does NAS still plan to withhold some or all FBI-submitted documents until the end of the study?
  • If so, will NAS provide a list of withheld FBI-submitted documents?
  • If NAS is planning to withhold some or all FBI-submitted documents until the end of the study but release them at that time, what legal authority does NAS cite for doing so?

Permanently withholding access to FBI-submitted documents.

  • Will NAS provide a list of any FBI-submitted documents which NAS is intending to permanently restrict from access, indicating in each case the specific exemption which is being cited to justify that action?

Thanks for your assistance in this matter.

LEW

******

2 Responses to “* NAS has still not provided any legal justification for its decision to withhold and sequester FBI-submitted documents related to the NAS review of the FBI’s anthrax science”

  1. DXer said

    On Thursday afternoon, USAMRIID Commander Col. John Svorak will speak at the NAS on “USAMRIID’s Biosurety Plan for Facilities and Personnel.” Lew is flying in today from France. After travel, he’ll be able to focus on litigation against NAS for failing to comply with the Federal Advisory Committee Act (“FACA”) by providing the FOIA-processed documents provided by the FBI. It might make sense to time any travel to DC to hear Col. Svorak’s talk.

  2. DXer said

    There is no statutory basis for this demand by Lew:

    “Will NAS provide a list of any FBI-submitted documents which NAS is intending to permanently restrict from access, indicating in each case the specific exemption which is being cited to justify that action?”

    NAS has no apparatus for handling FOIA requests and NAS is not subject to FOIA. It is subject to FACA.

    For that matter, there is no statutory basis for this demand by Lew:

    ” for failing to provide the specific exemptions for any documents NAS is currently withholding.”

    The 554 exemption is indicated by the FBI in the redactions that have been provided to the NAS panel. The NAS is not subject to FOIA. There is no obligation even under FOIA to create a Vaughn index except after suit.

    The NAS is subject to FACA. Not FOIA. I have quoted the language and Lew’s demands do not track FACA. FACA just requires that they provide the documents that contain some non-exempt material into the public access file. (To the extent they are exempt they will have been redacted by the FBI FOIA officer and the basis for the redaction will be indicated). The obligation is to take the FOIA-processed documents and put them in the file.

    Lew, needed to keep it simple. And tell NAS to put the FOIA-processed documents into the file or to explain the basis for not doing so. Such an imagined exemption — such as an exemption pending NAS review — would not be document specific but apply to all of them. The trouble is: there is no such exemption. The reason they don’t identify such a basis for withholding is that there is no statutory basis under FACA for not producing them now. It is just their preference. Preferences are immaterial under the rule of law.

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