The impulse to secrecy is now the dominant trait of federal government. Public access to information is disappearing faster than the Amazon rain forest, and a recent case is an important example of how this impulse distorts and undermines crucial institutional accountability and the U.S. legal system. The Freedom of Information Act meant to put knowledge in the hands of the people so they could make intelligent decisions about public policy and subject the government to the cleansing effects of public scrutiny. Over the decades, courts have pared down the reach of FOIA by upholding agency refusals to disclose information that are questionable and sometimes transparently motivated by desires to avoid embarrassment, public scrutiny, or revelation of criminal acts perpetrated by the government.
Courts will even accept no response as an acceptable response under FOIA in a rather strange device known as a Glomar Response. Built by Howard Hughes under the guise of a private vessel designed to mine manganese nodules from the ocean floor, the Glomar Explorer was actually designed and built in the early 1970s to recover nuclear weapons and other material from a sunken Soviet submarine. A FOIA request for information concerning the relationship between the CIA and the Glomar Explorer was met with rejection and an explanation that,
“the fact of the existence or non-existence of the records . . . request[ed] would relate to information pertaining to intelligence sources and methods which the Director of Central Intelligence has the responsibility to protect from unauthorized disclosure.”
The Glomar Response was designed to permit the CIA to remain silent in the face of requests for information when the very fact of possession or lack of possession of the requested documents would compromise national security. Although the government abandoned its position in the original case, Glomar responses are now routinely accepted by the courts. As one all-star appellate panel claimed in justifying judicial timidity,
“When a pattern of responses itself reveals classified information, the only way to keep secrets is to maintain silence uniformly. And this is what the CIA has done.”
With complete predictability, a myriad of federal agencies seized on the doctrine. Since the mid-1990s, the NSA, FBI, Department of Justice, U.S. Marshall’s Service, Department of State, and even the U.S. Customs Service, have used the Glomar Response. But nowhere in FOIA are agencies given the right to not respond to requests for information; the courts supplied them with that benefit by creating it as a judge-made rule. Self-emasculation has become a high art by the federal judiciary in national security cases. Obviously, such a tool as Glomar is very useful to federal agencies to avoid scrutiny and blanket requests with the pall of national security – whether or not a real national security concern underlies any particular matter. Read more
Bill Weaver served in U.S. Army signals intelligence for eight years in Berlin and Augsburg, Germany in the late 1970s and 1980s. He subsequently received his law degree and Ph.D. in politics from the University of Virginia, where he was on the editorial board of the Virginia Law Review. He is presently Professor and Director of the Center for Law and Border Studies at the University of Texas at El Paso. He specializes in executive branch secrecy policy, governmental abuse, and law and bureaucracy. His articles have appeared in American Political Science Review, Political Science Quarterly, Virginia Law Review, Journal of Business Ethics, Organization and other journals. He has co-authored several books on law and political theory. His most recent book, co-authored with Robert Pallitto, is Presidential Secrecy and the Law (Johns Hopkins University Press, 2007).
