By DANA LIEBELSON
POGO has received grim news about the water contamination scandal at Camp Lejeune--it appears the Department of Navy has successfully pressured a government agency into concealing information about the contamination. Even worse, this was all done with highly questionable legal justification.
The Agency for Toxic Substances and Disease Registry (ATSDR) released a report yesterday analyzing the water distribution system at Camp Lejeune. Between 1957 and 1987, water was contaminated with extremely toxic organic compounds that sickened countless Marines, civilians, and their families. The report is intended to help scientists learn more about the contamination—but thanks to the Navy and Department of Defense (DoD) civilians, a portion of the investigation is missing.
Jerry Ensminger, a retired Marine who lived at Camp Lejeune with his family, told POGO that he believes important information has been redacted from the report. Since his young daughter died of leukemia, Ensminger has worked tirelessly to uncover the truth about the contamination. His story is the subject of the documentary, Semper Fi: Always Faithful, which is on the Academy’s shortlist of best documentaries for this year.
Earlier this month, POGO leaked a letter where the Navy appeared to pressure ATSDR into withholding information from the public—including information about active potable water wells, lines, treatment plants, and storage tanks.
There are many reasons that the ATSDR’s decision to redact information is legally questionable.
For example, a Memorandum of Understanding (MOU) between ATSDR and the Navy explicitly states that information provided to ATSDR will be released in accordance to the Privacy Act, the Freedom of Information Act (FOIA), and “applicable regulations.”
Yet, according to the ATSDR report, the Navy asserted that the redactions were justified by a statute and two Department of Defense rules: “18 U.S. C. 795(a); Department of Defense Instructions, 2000.16; and SECNAV M-5510.36.” The first is a specific criminal statute for sketching or photographing defense installations that the President of the United States must personally define—to our knowledge, President Obama has not defined the water distribution systems at Camp Lejeune as “requiring protection against the general dissemination of information.” The latter two references have no bearing on ATSDR products at all. So basically, the redactions lack clear justification and don’t appear to abide by the MOU.
ATSDR needs to follow the law.
“The Camp Lejeune investigation can’t just be a secret agreement between two government agencies,” said Ensminger. “It concerns people’s lives.”
Interestingly, the law the Navy should have cited in its letter—but seemingly ignored—is the new “public interest balancing test,” which requires the Secretary of Defense to consider whether the public interest in FOIA disclosure outweighs protecting critical infrastructure security information. Though this is a DoD-specific law and isn’t directly applicable to the ATSDR report, information about the Camp Lejeune water contamination has a very strong public interest case.
Next week, POGO and allies plan to send letters urging the Department of Health and Human Services to release the unredacted report to the fullest extent allowable by law, and urging the Pentagon to begin properly implementing the new public interest balancing test in how critical infrastructure security information is protected.
The Navy may indeed have legitimate concerns regarding the vulnerability of certain critical information. However, there are strong concerns about whose interests the Navy and ATSDR are actually trying to protect.
“We urge ATSDR to make public the unredacted report to the fullest extent allowable under the law,” said Angela Canterbury, POGO’s director of public policy. “Failing to do so sets a dangerous precedent.”
Dana Liebelson is POGO’s Beth Daley Impact Fellow.
Image via waferboard.