August 24, 2016 The Honorable John McCain Chairman Senate Committee on Armed Services 228 Russell Senate Office Building Washington, DC 20510 The Honorable Jack Reed Ranking Member Senate Committee on Armed Services 228 Russell Senate Office Building Washington, DC 20510 The Honorable Mac Thornberry Chairman House Committee on Armed Services 2120 Rayburn House Office Building Washington, DC 20515 The Honorable Adam Smith Ranking Member House Committee on Armed Services 2120 Rayburn House Office Building Washington, DC 20515 Dear Chairmen and Ranking Members: As you begin to reconcile the differences between the House and Senate versions of the National Defense Authorization Act for Fiscal Year 2017 (NDAA, H.R. 4909 and S. 2943), the undersigned organizations, concerned with openness and accountability, urge you to remove Section 1054 of S. 2943: “Exemption of Information on Military Tactics, Techniques, and Procedures.” This broad exemption to the Freedom of Information Act (FOIA) for the entire Department of Defense (DoD) would severely undermine the FOIA reforms just passed into law by this Congress and create an unnecessary secrecy provision at odds with FOIA’s goal of transparency for public accountability for the operations of the Department of Defense. Last year Congress appropriately rejected a proposal to curtail FOIA through the NDAA. The proposed exemption included in Section 1054 would exempt “information on military tactics, techniques, and procedures,” from FOIA. 1 According to the Department, the expanded exemption is needed to address concerns about giving potential adversaries advance knowledge of this information. However, Exemption 1, which shields “properly classified” national defense information from disclosure, and a host of other statutory FOIA exemptions,2 already addresses these concerns and more than adequately protects such information. Furthermore, the DoD’s proposed language concerning the impact of release on operations is so broad that it could allow DoD to withhold almost any unclassified document at all related to Defense Department operations and could be used to justify concealing just about any material DoD creates. For example, DoD officials could potentially abuse their discretion to withhold information about the military’s handling of sexual assault complaints, its oversight of contractors, its drone program, and other matters of compelling public interest. The proposed language is unnecessary and clearly goes against FOIA’s originally intended purpose. 1 See Steve Aftergood, Federation of American Scientists, DoD Again Seeks FOIA Exemption for Military Doctrine, March 5, 2016, https://fas.org/blogs/secrecy/2016/03/dod-foia-ttp/. 2 Department of Defense Open Government, DoD (b)(3) Statutes Updated, http://open.defense.gov/Portals/23/Documents/DoD_(b)(3)_statutes_updated.pdf. (Downloaded June 20, 2016) 1 Any amendment to FOIA, especially amendments of this scope, should be referred to Committees with jurisdiction over FOIA-related issues, in this instance, the Senate Judiciary Committee or the House Committee on Oversight and Government Reform. FOIA-related legislation needs the careful consideration of those Committees, including public hearings; such care is necessary to ensure that any changes preserve agencies’ capability to withhold information which truly requires protection while preserving and promoting transparency and public accountability. That same care was afforded to the bipartisan FOIA Improvement Act of 2015, which was signed into law just last month. Granting DoD’s request from March 2015 ignores the new reforms to FOIA and allows DoD to excuse itself from the hard fought and necessary reforms passed just a few months ago by this Congress. If you have any questions or would like to discuss this issue further, please contact Liz Hempowicz, Policy Counsel with the Project On Government Oversight at 202-347-1122 or ehempowicz@pogo.org. Sincerely, American-Arab Anti-Discrimination Committee American Civil Liberties Union American Library Association American for Tax Reform American Society of Journalists and Authors American Society of News Editors Amnesty International USA Appeal for Justice Association of Alternative Newsmedia Bill of Rights Defense Committee/Defending Dissent Foundation Campaign for Accountability Center for Constitutional Rights Citizens for Responsibility and Ethics in Washington Constitutional Alliance David A. Schulz, Co-Director, Media Freedom & Information Access Clinic, Abrams Institute for Freedom of Expression, Yale Law School* Demand Progress Downsize D.C. Electronic Frontier Foundation Government Accountability Project Human Rights Watch Knowledge Ecology International Liberty Coalition Mark Tapscott, Executive Editor, Daily Caller News Foundation* National Freedom of Information Coalition National Press Club National Security Archive National Security Counselors National Taxpayers Union No More Guantanamos OpenTheGovernment.org Project On Government Oversight Reporters Committee for Freedom of the Press Society of American Archivists Sunlight Foundation Taxpayers for Common Sense Taxpayers Protection Alliance Transactional Records Access Clearinghouse Washington Coalition for Open Government cc: Members, House and Senate Armed Services Committee * Title for identification purposes only 2