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Tuesday, November 29, 2005

A New Ultra-Secret Government Agency

Source: OMB Watch

Legislation is moving in the Senate to create a new government agency to combat bioterrorism that will operate, unlike any other agency before it, under blanket secrecy protection.

Sen. Richard Burr (R-NC) has introduced the Biodefense and Pandemic Vaccine and Drug Development Act of 2005, S1873, that would create a new agency in the Department of Health and Human Services (HHS) to research and develop strategies to combat bioterrorism and natural diseases. While Congress has created several agencies recently in response to homeland security concerns, most notably the Department of Homeland Security, Burr proposes for the first time ever to completely exempt this new agency from all open government laws. The legislation has already passed out of the Committee on Health, Education, Labor, and Pensions and is now before the full Senate.

The Act creates the Biomedical Advanced Research and Development Agency (BARDA) to work on countering bioterrorism and natural diseases. Apparently in an attempt to protect any and all sensitive information on U.S. counter-bioterrorism efforts or vulnerabilities to biological threats, Burrs has included in the legislation the first-ever blanket exemption from the Freedom of Information Act (FOIA). The legislation states that, "Information that relates to the activities, working groups, and advisory boards of the BARDA shall not be subject to disclosure" under FOIA "unless the Secretary [of HHS] or Director [of BARDA] determines that such disclosure would pose no threat to national security."

Neither the CIA nor the Defense Department has such an exemption. Burr’s spokesperson argues that the exemption is necessary to protect national security claiming that "there will be times where for national security reasons certain information would have to be withheld." For instance, the BARDA should not, according to the spokesperson, be required to publicly disclose information pertaining to a deadly virus.

FOIA, however, already includes an exemption for national security information, as well as eight other exemptions ranging from privacy issues to confidential business information and law enforcement investigations. If the public disclosure of information would threaten national security, then the government may withhold the requested information. "The well-established and time-tested FOIA provisions already address Burr's concerns," explains Sean Moulton, OMB Watch senior policy analyst, "thereby making the blanket exemption for BARDA unnecessary and unwise."

Congress established and strengthened FOIA over the years to create a reasonable, consistent level of accountability among government agencies. Under FOIA, when the public requests agency records, the agency is compelled to collect and review the requested information. The only decision for the agency is whether specific records can or can not be released under the law based on the exemptions from disclosure written into the law. However, the Burr legislation reverses the process: it does not require BARDA to collect or review the requests for disclosure. Instead, the agency can automatically reject requests. Still more troubling, the law prohibits any challenges of determinations by the Director of BARDA or Secretary of HHS, stating that the determination of the Director or Secretary with regards to the decision to withhold information "shall not be subject to judicial review."

Mark Tapscott at the Heritage Foundation writes that "BARDA will essentially be accountable to nobody and can operate without having to worry about troublesome interference from courts or private citizens like you and me."

This move to restrict the reach of FOIA appears in stark contrast to the recent Senate vote to strengthen open government. Sens. John Cornyn (R-TX) and Patrick Leahy (D-VT) co-sponsored FOIA reform legislation, passed by the Senate in June, that "will bring additional sunshine to the federal legislative process, and was another step toward strengthening the Freedom of Information Act."

The Biodefense and Pandemic Vaccine and Drug Development Act also exempts BARDA from important parts of the Federal Advisory Committee Act, which requires public disclosure of advice given to the executive branch by advisory committees, task forces, boards and commissions.

Other provisions of the bill compound the troubling secrecy provisions. They include:

The FOIA exemption in combination with these provisions would prevent the public from knowing whether BARDA is effectively completing these duties. Only information on agency actions could establish if the new agency is protecting the public from bioterrorism and infectious disease or if it is simply providing handouts to drug companies that creates no added security.

"It is essential that open government safeguards remain in place for all agencies," Moulton continues. "It is extremely important to ensure that the nation is protected against pandemics and bioterrorist attacks, but such efforts must not be excluded from open government. By providing the mechanisms for government accountability, these safeguards ensure that the government meets its responsibility to protect the public. In the end, an accountable government is a stronger government which acts to effectively meet all threats, including pandemics and bioterrorism."

Burr is still in the process of revising the Biodefense and Pandemic Vaccine and Drug Development Act, and, with the Senate's incredibly tight schedule, the timing of the bill's introduction on the floor remains uncertain. In the meantime, supporters are rumored to be seeking out a Democratic cosponsor to give it momentum.

Posted by Becca

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