September 13, 2011
Navy fights to keep explosives data secret from residents
By Kyung M. Song | Seattle Times Washington Bureau
WASHINGTON — It's been eight years since Glen Milner first asked the Navy just how big an explosion could be triggered by an accident or an attack at its munitions depot on Indian Island, Wash.
Might flying steel fragments blast downtown Port Townsend, the community just a couple of miles across the bay? What's the emergency response plan at the military's biggest ordnance storage site on the West Coast?
It's been six months since the U.S. Supreme Court struck down part of the Navy's grounds for rejecting Milner's public records request under the federal Freedom of Information Act. Milner's victory was a significant test for public disclosure, and it reined in the expanding use of an exemption that originally was conceived to protect personnel information such as salaries and job evaluations.
Yet Milner, of Lake Forest Park, Wash., may never see that Navy data.
The Department of Defense is in back in U.S. District Court in Seattle, where it's pursuing its second legal argument. The Navy contends that its information is covered under a FOIA exemption for law-enforcement records. Milner and his attorney, David Mann, dismiss the claim as a stretch.
The two men fear, however, that the Navy ultimately may get its way: The 2012 defense authorization bill that's wending through the Senate contains a provision that would permit the Pentagon to withhold sensitive but unclassified infrastructure data, exactly the kind of information the Navy says it's being asked to divulge.
Milner has appealed to Sens. Patty Murray and Maria Cantwell of Washington, both Democrats, to block the legislative change, with little apparent success. Sen. Patrick Leahy, a Vermont Democrat, has proposed tightening the loophole, but Milner says that doesn't go far enough.
Should Congress adopt the Pentagon exemption, "it would make it impossible for citizens to learn of this type of danger," Milner said. "It just seems to me that people ought to know."
"The Navy has concluded that disclosure could endanger public safety," said Emily Langlie, a spokeswoman for the U.S. Attorney's Office in Seattle, which is representing the Navy in the case. "Not only does the Navy have the legal authority to make that determination but also, given its expertise in such matters, it is in the best position to do so."
The Navy base's commander has said in a court declaration that a massive explosion wouldn't reach Port Townsend.
Milner, 60, is an electrician and a married father of three adult children. He also is a longtime peace activist who knows firsthand the government's penchant for secrecy.
In April 1986, Milner was among the opponents of nuclear weapons who were protesting outside the Navy's Trident nuclear submarine base at Bangor, Wash., when a Bangor-bound train carrying missile parts derailed.
Officials said at the time that the train carried no explosives. But documents Milner obtained a year later through FOIA revealed otherwise. The shipment included six propellant-loaded Trident missile motors with a combined explosive weight that exceeded 50 tons of TNT. The 1995 bombing in Oklahoma City was equivalent to detonating 2 tons of TNT.
Another FOIA request in 1990 uncovered that the Department of Energy repeatedly had trucked nuclear warheads to Bangor on highways in an attempt to bypass protesters who were blocking rail tracks. That violated an agreement hashed out by the late Washington Sen. Warren Magnuson requiring shipment by train.
But none of Milner's FOIA battles has been as protracted as the one over Naval Magazine Indian Island, at the mouth of Puget Sound.
The base handles bombs, torpedoes, bullets and other ammunition for all five branches of the military. Milner first wrote the Navy in 2003 seeking details about Indian Island's explosive handling zones, or calculations on the force of different explosions at varying distances. The Navy uses the formula mainly to store munitions far apart enough to prevent chain reactions.
The Navy refused, saying that releasing the explosives data would threaten the safety of people who worked on the base. Potential attackers, the Navy contends, could "reverse engineer" the information to pinpoint munitions stockpiles.
Milner sued. The Navy responded by citing two of the nine specific exemptions under FOIA. Exemption 2 allows withholding material-related personnel records while Exemption 7 covers law enforcement investigative records.
The U.S. Supreme Court eventually overturned the first exemption, complaining that the Navy had so twisted the meaning of "personnel" to fit its logic that "the government's definition eludes us."
The court, however, also acknowledged that the Navy has strong security interest in shielding the explosives data and maps. The justices suggested that the Navy could seek other means to hang on to the data, including retroactively classifying it, resting the case solely on Exemption 7 — or getting Congress to change the law.
That last option may be the Navy's best shot. Unless the new provision in the defense authorization bill is altered, Milner and Mann say, they don't ever expect to receive the maps.
Last month, the Port Townsend City Council voted to urge Murray and Cantwell to strip the amendment before the bill comes up for a Senate vote in the coming weeks.
As for Indian Island, the Navy says the base poses minimal risks to nearby residents. In a court declaration two weeks ago, Gary Martin, Indian Island's new commander, said a massive explosion would be "extraordinarily dangerous" to base personnel but wouldn't reach Port Townsend.
Milner says that scenario may or may not be accurate. A member of Ground Zero Center for Nonviolent Action, an anti-nuclear group in Poulsbo, Wash., he says the government's instinct for self-interest can shade the truth.
"The greater the dangers to the public, the less likely the Navy is to tell the public of those dangers," Milner said.
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