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Pearl Harbor Remembrance

December 7, 2010 - Pearl Harbor

SCOTUS FOIA Case - Transcript of Oral Argument Available

Freedom of Information Act cases reach the Supreme Court about once every 15 years.  Milner v. Dep't of Navy is an interesting case that pits the Navy's desire for security of its bases against the public's statutory right to disclosure of government documents, bundled up with the post-9/11 desire to ensure local responders (without federal security clearances) have the information they need to respond to natural and man-made disasters. 

Oral argument was earlier this week.  The transcript is here.  My earlier posts on this case can be found here.

The FOIA exemption at issues is remarkably innocuous:

5 U.S.C. § 552(b) of the Freedom of Information Act ("Exemption 2") provides in pertinent part:

(b) This section [providing for public access to government documents] does not apply to matters that are:

(2) related solely to the internal personnel rules and practices of an agency.

"Peace Through Strength" or How I Spent a Day Away from the Office

Courtesy of Rear Admiral Dixon Smith, Navy Region Hawaii, I was invited to visit the USS Ronald Reagan, currently operating off Hawaii for RIMPAC 2010.  Some thoughts, images and videos of my visit:

The Ronald Reagan:

The Damon Key attorneys before their adventure begins:

 

Our chariot to the carrier, the COD.

Tom Cruise, I ain't.

Joachim Cox and I are looking quite....well....interesting?

Aboard the USS Ronald Reagan, with Commanding Officer Captain K.J. Norton, in the "Admiral's Office."

Admiral in charge of the Strike Group welcoming us to RIMPAC 2010.

I saw no less than 30 items of President Reagan memorabilia.

F-18 tail, on the hangar deck.

 

Another hangar shot.

 

First stop, the bridge for a bird's eye view of launch and recovery.

 

Video of launch:

 

 

Intruder landing, view from the bridge.

 

And video:

 

 

 

Launch operations.

The Island.

CVN-76.

 

 

 

 

 

 

 

 

 

 

Love the orchestrated dance on deck.

 

 

 

 

 

 

 

 

 

 

Partner Ken Kupchak.

 

 

 

Nailed it.

 

Lining up:

Office with a view:

Turbo-prop for you non-jet types:

Marines in the house.

 

Our group:

 

Ship CO reading an award for battle readiness.  Congrats to the RR crew for the achievement.

 

Getting ready for the catapult shot home, view of the COD ramp.

 

Right before the "cat shot".

Hickam AFB Distinguished Visitor terminal.  Not sure when (or if) I elevated to Distinguished!

 

Thank you Navy!

 

From President Reagan, a message the Navy left me with:

Sunset Tour of Pearl Harbor, Courtesy of U.S. Navy

I was privileged to be the guest of Rear Admiral Dixon Smith, U.S. Navy, during a sunset tour of Pearl Harbor tonight.  Sorry Robert, no grog served onboard!

Admiral Smith, a surface warfare specialist, is the Commander of Navy Region Hawaii.  Admiral Smith's biography reflects a lifetime spent at sea in peace and war:

His first sea tour was in USS MILLER (FF 1091), serving as First Lieutenant and Damage Control Assistant.  In March 1990, RDML Smith assumed responsibilities as Operations Officer in USS JARRETT (FFG 33), participating in Operation DESERT STORM providing air cover for USS MISSOURI (BB 63) and escort duties off the coast of Kuwait.  Follow-on orders as Operations Officer in USS GRIDLEY (CG-21) included participating in the establishment of Operation SOUTHERN WATCH over Southern Iraq.  From April 1997 to June 1998, RDML Smith served as Executive Officer in USS ANTIETAM (CG-54).  As Commanding Officer, USS THE SULLIVANS (DDG-68) from July 2001 to March 2003, he deployed with the JOHN F. KENNEDY Battle Group in support of Operation ENDURING FREEDOM.

Admiral Smith's responsibilities include command of all surface forces in the Mid-Pacific.  A Naval Academy graduate, he also holds advanced degrees from Webster University and the Army Command and General Staff College.

 

The Arizona Memorial

 

 

 

 

 

 
 

 

 

 

Mahalo Admiral Smith.  Pearl Harbor at sunset was stunning and your hospitality gracious.

SCOTUS FOIA Case - Cert Petition Available

Yesterday, I posted about the Supreme Court taking a FOIA case from the Ninth Circuit, here. I have received the Petition for Certiorari from counsel and it is available here.

Mr. Milner requested an EQSD map for the Naval Magazine at Indian Island.  The EQSD is a map which shows the blast radius for explosives and shows how far an explosion will "expand" should one of the munitions detonate.

At issue is an exemption from the Freedom of Information Act which protects from disclosure documents relating to internal personnel rules and practices of an agency.

5 U.S.C. § 552(b) of the Freedom of Information Act ("Exemption 2") provides in pertinent part:

(b) This section [providing for public access to government documents] does not apply to matters that are:

(2) related solely to the internal personnel rules and practices of an agency.

Courts have created two categories of documents using this exemption:  "High 2" and "Low 2".  The Supreme Court upheld the use of this exemption for documents that were trivial in nature.  Dep't of the Air Force v. Rose, 425 U.S. 352 (1976).  The Ninth Circuit (and other courts of appeal) have created a "High 2" exemption for FOIA that allows documents that could circumvent an "agency regulation" to be withheld.

This petition seeks to undo the High 2 exemption from FOIA. 

This will be very interesting in terms of the balance between national security and transparent democratic government.  We shall also see the balancing of a textual approach to statutory interpretation and national security interests of the nation.

Supreme Court To Review FOIA Case Involving Naval Magazine at Puget Sound

News Flash - the Supreme Court is going to review a Ninth Circuit FOIA case relating to the Naval Magazine at Indian Island in Puget Sound.  FOIA cases at the Supreme Court are few and far between, so this is pretty big (for us FOIA wonks anyway).  My post on the Ninth Circuit's decision here.

The Question Presented is:

Whether 5 U.S.C. § 552(b)(2), which allows a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the "High 2" expansion created by some circuits but rejected by others.

Briefly summarizing the Ninth Circuit decision:

The Plaintiff submitted a FOIA request for government records relating to the Naval Magazine at Indian Island in Puget Sound.  The Navy disclosed about 1000 pages of records but did not release 81 documents, citing to two exemptions of the Freedom of Information Act.

Plaintiff brought suit and the Navy obtained summary judgment from the trial court.  The Ninth Circuit affirmed the decision finding that the the records were exempt under the FOIA's Exemption 2 (exempting from disclosure matters that are “related solely to the internal personnel rules and practices of an agency.”)

This exemption protects records which could be used to circumvent government regulations or those sensitive records designed for the agency's own internal use (assuming that they are particularly sensitive).

The Navy refused to turn over maps which denoted the blast radius around the Island based on the various types of munitions stored there.  The Court found that to disclose the records posed a risk that the records would be used to circumvent the law.  Therefore, the records were not required to be disclosed under FOIA.

I have asked plaintiff's counsel for a copy of the Petition for Certiorari and will post if received.  The government's brief in opposition is here.  The government's question presented was a little different:

Whether Exemption 2 of the Freedom of Information Act, 5 U.S.C. 552(b)(2), exempts from disclosure technical explosive and ammunition safety maps used by Navy personnel for the safe handling and storage of ordnance at Naval Magazine Indian Island.

President Issues Executive Order on Somalia - Ransom Payments Illegal?

On Tuesday, President Obama issued an Executive Order relating to the Somalia piracy situation.  The Executive Order took effect immediately.  It purports to "block" payments, transfers or donations of property to several classes of individuals related to the crisis in Somalia.

The text of the Executive Order, the concurrently released message to Congress and the Annex are provided below.  When reviewing the legality of such an Executive Order, the starting point is to identify the statutory authorization for such an action.  As President Truman found out during the Korean War, the Executive Branch of the federal government is constitutionally constrained by its inability to legislate and any actions which purport to legislate are unconstitutional.  See Steel Seizure Case.

In this case, as you would expect, the President does have wide authority in the realm of international financial transactions and national defense.  See 50 U.S.C. s. 1702.  The maritime community is abuzz about this E.O. (hat tip to the Maritime Law Association of the U.S. for sending me the attached documents). Stay tuned.

The E.O. states:

I, BARACK OBAMA, President of the United States of America, find that the deterioration of the security situation and the persistence of violence in Somalia, and acts of piracy and armed robbery at sea off the coast of Somalia, which have repeatedly been the subject of United Nations Security Council resolutions (including Resolution 1844 of November 20, 2008; Resolution 1846 of December 2, 2008; Resolution 1851 of December 16, 2008; and Resolution 1897 of November 30, 2009), and violations of the arms embargo imposed by the United Nations Security Council in Resolution 733 of January 23, 1992, and elaborated upon and amended by subsequent resolutions (including Resolution 1356 of June 19, 2001; Resolution 1725 of December 6, 2006; Resolution 1744 of February 20, 2007; Resolution 1772 of August 20, 2007; Resolution 1816 of June 2, 2008; and Resolution 1872 of May 26, 2009), constitute an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat.

I hereby order:

Section 1. (a) All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person, including any overseas branch, of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in:

(i) the persons listed in the Annex to this order;

and

(ii) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State:

(A) to have engaged in acts that directly or indirectly threaten the peace, security, or stability of Somalia, including

but not limited to:

(1) acts that threaten the Djibouti Agreement of August 18, 2008, or the political process; or

(2) acts that threaten the Transitional Federal Institutions, the African Union Mission in Somalia (AMISOM), or other international peacekeeping operations related to Somalia;

(B) to have obstructed the delivery of humanitarian assistance to Somalia, or access to, or distribution of, humanitarian assistance in Somalia;

(C) to have directly or indirectly supplied, sold, or transferred to Somalia, or to have been the recipient in the territory of Somalia of, arms or any related materiel, or any technical advice, training, or assistance, including financing and financial assistance, related to military activities;

(D) to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, the activities described in subsections (a)(ii)(A), (a)(ii)(B), or (a)(ii)(C) of this section or any person whose property and interests in property are blocked pursuant to this order; or

(E) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.

(b) I hereby determine that, among other threats to the peace, security, or stability of Somalia, acts of piracy or armed robbery at sea off the coast of Somalia threaten the peace, security, or stability of Somalia. (c) I hereby determine that, to the extent section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) may apply, the making of donations of the type of articles specified in such section by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to subsection (a) of this section would seriously impair my ability to deal with the national emergency declared in this order, and I hereby prohibit such donations as provided by subsection (a) of this section.

(d) The prohibitions in subsection (a) of this section include but are not limited to:

(i) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order; and

(ii) the receipt of any contribution or provision of funds, goods, or services from any such person.

(e) The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the effective date of this order.

Sec. 2. (a) Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this order is prohibited.

(b) Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited.

Sec. 3. For the purposes of this order:

(a) the term "person" means an individual or entity;

(b) the term "entity" means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization;

(c) the term "United States person" means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States;

(d) the term "Transitional Federal Institutions" means the Transitional Federal Charter of the Somali Republic adopted in February 2004 and the Somali federal institutions established pursuant to such charter, and includes their agencies, instrumentalities, and controlled entities; and

(e) the term "African Union Mission in Somalia" means the mission authorized by the United Nations Security Council in Resolution 1744 of February 20, 2007, and reauthorized in subsequent resolutions, and includes its agencies, instrumentalities, and controlled entities.

Sec. 4. For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render those measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in this order, there need be no prior notice of a listing or determination made pursuant to section 1(a) of this order.

Sec. 5. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA and the UNPA, as may be necessary to carry out the purposes of this order. The Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the United States Government consistent with applicable law. All agencies of the United States Government are hereby directed to take all appropriate measures within their authority to carry out the provisions of this order.

Sec. 6. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to submit the recurring and final reports to the Congress on the national emergency declared in this order, consistent with section 401(c) of the NEA (50 U.S.C. 1641(c)) and section 204(c) of IEEPA (50 U.S.C. 1703(c)).

Sec. 7. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to determine that circumstances no longer warrant the blocking of the property and interests in property of a person listed in the Annex to this order, and to take necessary action to give effect to that determination.

Sec. 8. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 9. This order is effective at 12:01 a.m. eastern daylight time on April 13, 2010.

BARACK OBAMA

The White House issued a message to Congress re Somalia regarding this Executive Order and also published the Annex with the names of the individuals now "blocked."

Winter v. NRDC Part 2? - Navy Training Area off Florida Challenged

Winter... Part Two.  A Florida newspaper is reporting an environmental challenge to the Navy's training area off the east coast of Florida. 

Per the article,

A dozen environmental groups filed suit today to stop a U.S. Navy plan to build its $100 million Undersea Warfare Training Range about 50 miles east of Jacksonville, near known calving grounds for the endangered North Atlantic right whale.

The legal challenge alleges that the Navy and the National Marine Fisheries Service failed to study the impacts that building and operating the range would have on right whales.

They fear the sonar used at the range could damage to the giant mammals’ ability to navigate, increasing the risk of beaching and death as they migrate and calve along Florida’s east coast — including the Space Coast — primarily in January and February.

 

Holy Danger Zones Batman - Kaneohe Danger Zone Amendment

The Danger Zone. (And, no not Planet Patrol's Danger Zone or the more familiar Kenny Loggin's Danger Zone).  For the past several years, the Army Corps of Engineers has attempted to change the boundaries of the danger zone in the ocean waters off the U.S. Marine Corps base at Kaneohe.  The final rule is here and is effective on December 16, 2009.

Apparently, in 2007, several comments to the proposed rule prompted review.  The comments included concerns over impacts to ceded lands, the need for an Environmental Impact Statement and impacts to wildlife.  The Army Corps of Engineers, using its authority under the Rivers and Harbors Act, has the authority to designate such ocean areas for danger areas. 

I couldn't find a digital graphic of the danger zone as enacted, the older version is on the last page of the original rule here.  The rule acknowledges that the risk from the Marine shooting range is neglible, but better safe than sorry.

Bottom line: if you are boating in Kaneohe Bay and see red flags on the Marine base, move away.

New Case - 9th Circuit FOIA Case Relating to Puget Sound Naval Munitions Site

Today, the Ninth Circuit affirmed a Washington federal court's summary judgment in favor of the Navy in a Freedom of Information Act case.

The Plaintiff submitted a FOIA request for government records relating to the Naval Magazine at Indian Island in Puget Sound.  The Navy disclosed about 1000 pages of records but did not release 81 documents, citing to two exemptions of the Freedom of Information Act.

Plaintiff brought suit and the Navy obtained summary judgment from the trial court.  The Ninth Circuit affirmed the decision finding that the the records were exempt under the FOIA's Exemption 2 (exempting from disclosure matters that are “related solely to the internal personnel rules and practices of an agency.”)

This exemption protects records which could be used to circumvent government regulations or those sensitive records designed for the agency's own internal use (assuming that they are particularly sensitive).

The Navy refused to turn over maps which denoted the blast radius around the Island based on the various types of munitions stored there.  The Court found that to disclose the records posed a risk that the records would be used to circumvent the law.  Therefore, the records were not required to be disclosed under FOIA.

Decision can be downloaded here.