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FW: A New Ultra-Secret Government Agency

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  • karaka
    Message 1 of 1 , Nov 30, 2005
      ------ Forwarded Message

      The OMB Watcher
      Vol. 6, No. 24
      November 29, 2005

      A New Ultra-Secret Government Agency

      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

      * Giving BARDA the authority to sign exclusive contracts with drug
      manufacturers and forbidding the agency from purchasing generic versions of
      these drugs or vaccines.

      * Authorizing BARDA to issue grants and rebates for drug companies to
      produce vaccines.

      * Providing liability protection to drug manufacturers for drugs and
      vaccines not approved by the Food and Drug Administration, by requiring the
      secretary of HHS find that a drug company willfully caused injury.

      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.

      ------ End of Forwarded Message

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