Anti-Gag Statute - Renewed Threat

Renewed Threat

The campaign to put enforcement teeth in the anti-gag statute has become even more significant, due to two recent factors: 1) There has been a tidal wave of illegally broad national security and non-national security gag orders during the last few years. Gag orders have been used in attempts to silence America’s top government scientists on matters ranging from the secret additional $800 million in the prescription drug bill, to U.S. Food and Drug Administration (FDA) cover-ups of knowledge about dangerous drugs such as Vioxx, to the most alarming scientific research on the imminent threat from global warming. 2) While the term “classifiable” was removed from executive gag orders in 1989, “sons of classifiable” have sprung up like weeds, with new names like “Sensitive, but Unclassified,” “Sensitive Security Information,” and “Critical Infrastructure Information” (a congressionally created version from the Patriot Act). They all have the same characteristics – employment and criminal liability for non-classified disclosures of arguably anything without prior permission. In fact, their threat is greater than the original Reagan-era nondisclosure policy, because these restrictions impose an Official Secrets Act on every federal employee or contractor, not just those with security clearances.

The new hybrid secrecy categories also have been used to camouflage phony announcements of free speech reform. To illustrate, NASA recently issued a new media policy to quell the controversy around an unsuccessful attempt to gag its top climate change scientist, Dr. James Hansen. The policy appears to respect employees’ free speech rights as private citizens, but there is an all-encompassing loophole: the policy defies the WPA by requiring prior approval for all whistleblower disclosures that are "Sensitive But Unclassified" (SBU). The legal definition of SBU is overly broad and vague, and potentially can sweep in any information. Illustrative definitions include the Energy Department’s (“information for which disclosure … could adversely affect national security or government interests”) and the State Department’s (“information which, if released, could result in or harm or unfair treatment to any individual or group”). NASA’s own procedures do not define the term explicitly, but explain that it replaces the broad category “For Official Use Only.”