UFO Secrecy, National Security and the Freedom of Information Act

The following is a highly important article carried by the American Chronicle just published today by Franklin D. Fields, Jr. Esq.  Accolades should be written of the American Chronicle's courage to carry and publish the leading work in Exopolitics by the world class researchers, mediators, and other professionals who volunteer their time and effort to bring to light the greatest experience the human race has ever participated in.

http://www.americanchronicle.com/articles/73206

Franklin D. Fields, Jr. served as a U.S. Army Officer and has traveled extensively. He is a graduate of the Army's Command and General Staff College and was awarded the Bronze Star Medal while a Army unit commander in Iraq. His civilian education includes a Juris Doctor Degree from the University of Florida. Frank currently works as an attorney and owns a real estate investment company.

UFO Secrecy, National Security and the Freedom of Information Act (FOIA)

Franklin D. Fields, Jr. Esq.
September 05, 2008

 "Unknown objects are operating under intelligent control... It is imperative that we learn where UFO's come from and what their purpose is..."
-- Admiral Roscoe H. Hillenkoetter, Former Director, CIA

For over 60 years, the Unidentified Flying Object (UFO) phenomenon has mystified and intrigued Americans. There are many theories concerning the nature of UFOs and they are heatedly debated. Even the usage of the term "UFO" is debated by some. For the purposes of this article it is defined to be a flying object that does not have a known conventional explanation. There is however not much debate on the topic of government secrecy relating to UFOs. According to poll data, over eighty percent (80%) of Americans believe the U.S. Government is hiding knowledge of the existence of extraterrestrial life and UFOs (See: CNN/Time Poll). This poll data shows a strong belief that our government is far too secretive. Many Americans have asked the government for information on the topic and have been refused. When refusing the information, government agencies often use national security as a justification. This should greatly concern Americans, our media and Congress. However, none have shown much interest.

Our courts have not been very helpful either. In fact, official secrecy around the UFO subject is being shielded by a large degree of judicial deference that is routinely granted to agencies when refusing to release information to the public. As a result, the balance between civil rights and secrecy is shifting towards increased suppression. This article examines the legal concerns around the U.S. Government´s use of national security as justification for keeping information on UFOs secret. Additionally we will discuss whether or not our courts are property adjudicating the legal issues or effectively weighing the alleged national security concern against the loss of our Constitutional rights. It is important to state up front that inappropriate biases are given to the government and that has allowed government secrecy to run rampant in UFO cases as well as all others dealing with national security.

Obviously, there is no dispute about the fact that our government is using national security to justify secrecy and in many cases it is appropriate. However, it is not clear what national security concerns are involved within the UFO subject area. Of course some UFOs could actually be classified government aircraft and in that event secrecy may be required. Interestingly, the evidence indicates that classified aircraft are rarely involved in UFO sightings. UFOs often defy conventional flight capabilities well beyond what experienced pilots and engineers would expect from even future generations of aircraft. The idea that UFOs are classified aircraft is suspect and should only be valid for UFO sightings that occur in areas where our government tests aircraft or where aircraft would be deployed, like in a war campaign. I do not see an allowable reason for our government to routinely fly highly classified test vehicles over populated areas of the United States.

Take the recent UFO reported near Stephenville, Texas, on Jan. 8, 2008. Why would our government be flying in that area? Incidentally, the case has over seventeen witnesses with Federal Aviation Administration (FAA) radar data to substantiate their testimony. The residents reported a very large craft that was "as big as a Wal-Mart", that did not make a sound, and flew out of our atmosphere in "the blink of an eye". If the reports are correct and it was not an alien spacecraft, but is instead a classified U.S. aircraft, we may well have a bigger national security problem than UFOs. The Air Force has yet to release radar or other information on the sighting.

An argument has been made that the government does not have additional UFO information to provide, and that they have released all their files. This argument fails because we know that information on UFOs has been denied to the public and national security has been listed as the reason for nondisclosure, this fact can not be disputed. Those that argue the government does not know anything should explain this blatant discrepancy. In the government documents that have been released there are large portions and even whole pages that are blackened out or redacted. Granted the redacted information may not be clear evidence of the reality of UFOs, it is however clear proof the government is withholding some information on the subject.

The heart of the legal matter, which should be addressed by our courts, is whether or not government bureaucrats and elected officials have a justification strong enough to maintain this secrecy at the expense of our Constitutional rights. To my knowledge, our courts have not yet answered this question. To state this more precisely, a Court has not conducted a trial to examine the facts and then weighed the impact of their release against the loss of our Constitutional rights. If for example, the information showed UFOs were not of this earth, I would argue that a clear showing of extreme national security danger (not just some frightened citizens or market turmoil), that is in fact likely to materialize, must be demonstrated to maintain secrecy. If such a trial were to occur, experts on national security, sociology, psychology, and other relevant areas would be called by both sides to properly weigh the need for continued secrecy against the burden of our rights.

The current judicial review process virtually never (less than 1%) conducts a trial to determine if an agency is acting appropriately. The mere unchecked opinion of our government bureaucrats, that the release of the information might be a national security threat, is insufficient. Under the present system an agency is not required to prove that the national security risk is likely, just simply state it is a potential. This type of unsupervised government secrecy should not be allowed to continue. The right to know the truth is a fundamental civil right granted by our Constitution and essential to our democracy. The need for information is especially important in a democracy; citizens must know what their government knows in order to participate in the process. Only with real information can citizens actually take part in government. True participation, is the way accountability occurs in their name, and in that way they can hold authorities, elected and non-elected, accountable for their acts.

The distinguished former U.S. Senator William Proxmire once stated, "Power always has to be kept in check; power exercised in secret, especially under the cloak of national security, is doubly dangerous." Our Constitution requires that the free exchange of opinions and ideas must never be unnecessarily restricted. It also states that all citizens must be equal before the law and that the Government exists to serve the people, because it derives its power from the people. If UFOs were in fact not of our earth, what could be more essential than knowledge that we are not alone in the universe? As an example, this knowledge would almost certainly change how we as a society allocate resources. Specifically, we might act through our elected officials and add additional funding to NASA´s budget to study the issue in more detail. Even if the hidden information was inconclusive on the origin of UFOs or proved they were of earth origin, it is still relevant and the public has the right to know.

It is easy to see how information can change our social and political workings. To insure our democracy functions appropriately and to address secrecy, citizens must have the ability to obtain information from the government. This is one of the essential elements needed to keep power in check and insure our democracy´s health. Congress understood this essential requirement and passed legislation to address it by setting up a legal framework called the Freedom of Information Act (FOIA) also known as Title 5 of the United States Code, section 552. FOIA states that any person has the right to request access to federal agency records or information and provides rules for its use. FOIA requires all agencies of the U.S. Government to disclose records upon receiving a written request, except those records that are protected from disclosure pursuant to nine exemptions and three exclusions.

The current framework for administering UFO secrecy is through these exemptions. They allow the government to withhold certain information when they designate information to have national security importance. The most significant is Exemption 1, which allows agencies to withhold records in the interest of national defense or foreign policy. Also, Exemption 3 allows agencies to withhold records that are specifically exempted from disclosure by statute. Exemption 1 is however, the main national security exemption. The FOIA process has been used by thousands of citizens in their attempt to retrieve information about UFOs. The ongoing process to discover all of what our government knows has, however, proven exceedingly frustrating. Many of the documents that have been released are either irrelevant to the specific requests or are almost entirely redacted as mentioned above. When a government agency refuses or incompletely releases requested information, the requester goes through a prescribed administrative process to challenge the agency, after exhausting administrative remedies, a dissatisfied FOIA requester may contest agency decisions in federal district court.

When a court hears a requester´s FOIA complaint it is arguably fulfilling the judiciary´s Constitutional role of review. Nevertheless, in the 1982 case Gardels v. CIA, (See: 689 F.2d 1100, 1105 ) the Court stated that the standard for withholding records on national security grounds is very accommodating since courts only test an agencies national security claims for reasonableness, good faith, specificity, and plausibility. In other words, they do not assess whether the alleged risks of disclosure would be likely to materialize, or weigh those risks against other interests. The court´s main emphasis is to determine if the agency complied with administrative requirements such as filling out an affidavit indicating it searched for records and provided a legitimate reason information was exempted, such as national security.

Actually, the Department of Justice states in instructions to agencies that the administrative task of filling out the affidavit is the single most important requirement for an agency to defend against an FOIA lawsuit. In the 1987 Struth v. FBI case the Court specifically stated "courts have consistently held that a requester's opinion disputing the risk created by disclosure is not sufficient to preclude summary judgment for the agency when the agency possessing the relevant expertise has provided sufficiently detailed affidavits." (See 673 F. Supp. 949, 954, E.D. Wis.) This clear statement adds strength to the argument that the current legal method of review does not meet the required level of a Constitutional judicial review. Does an affidavit from one party fulfill the judicial review requirement? It is important to understand that the affidavit is a document that contains information relevant to the case and is sworn to by an agency employee. It is documentation provided by the agency stating that they complied with the FOIA requirements. It is a one sided statement from an agency and it is not a presentation of legal arguments or legal conclusions. It can not be challenged in a trial by the requester, and therefore does not receive a full legal review. The result is that the government almost always prevails in FOIA national security litigation. (See: Holding the Spymasters Accountable: A Proposed Model for CIA Disclosure Requirements under the Freedom of Information Act, by Martin Halstuk, Pennsylvania State University, 27).

Take the case of the CIA, which derivatively classifies more documents than any other government body and may hold the most information on UFOs. They have proven especially invulnerable to FOIA review. The Ninth Circuit conceded in 1992 that "we are now only a short step away [from] exempting all CIA records from FOIA." (See: Hunt v. CIA, 981 F.2d 1116, 1120, 9th Cir.). This sad state of affairs means that over 99% of all FOIA law suites end before the trial ever begins. An agency affidavit is filed, to support a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure and the Court makes its judgment with no trial. The summary judgment is based upon a motion by the agency that contends that all necessary factual issues are settled and the case is not tried. Essentially, if an agency employee signs the required affidavits and states that the information, if publicly disclosed, would harm national security, then that is generally good enough.

It is especially worthy of note, that the administrative agencies are responsible for processing initial requests for access to their records and for adjudicating any appeals from those actions. However, when an agency is taken to court by a requester in a FOIA lawsuit, the Department of Justice almost always represents the defendant agency on behalf of the government. FOIA cases are defended either by the local U.S. Attorney's office or by the Civil Division of the Department of Justice, with agency legal and FOIA staffs playing a supporting role. In FOIA litigation, the defendant agencies are the clients of the Department of Justice. During the past two decades, as FOIA case law has developed in the courts, this attorney-client relationship has developed as well. This means that a select, well-trained cadre of government lawyers are used to defend these cases and is often the same group representing all the agencies of the U.S. government. They have become very effective at winning.

It is also clear from the cases that a degree of judicial deference is routinely granted to agencies defending against FOIA requesters. This trend is directly opposite the clear congressional objectives defined when Congress was drafting the FOIA. The U.S. Supreme Court specifically stated in its 1976 ruling, Department of the Air Force v. Rose, (See 425 U.S. 352, 361) that the intention of the FOIA was "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny". However, from the start the FOIA was compromised, secretive government agencies and court deference shunted its underlying principles of openness and accountability. It can not be more apparent; FOIA national security claims deserve additional judicial scrutiny. The judicial record of FOIA case law shows that the inappropriate bias has caused uncontrolled government secrecy. According to the Information Security Oversight Office (part the National Archives) the number of documents classified in the last six years has almost quadrupled. Going from 5.8 million in 1996 to more than 20 million last year. The government bureaucrat´s huge advantage is preventing vital information from getting into the hands of our country's real rulers, you and your fellow citizens.