Update 12/2/05
Update 12/2/05
I met Thursday afternoon with Robert Kadlec, the staff director for the Senate subcommittee on bioterrorism, and Jennifer Bryning, an aide to Sen. Richard Burr, the sponsor of the bioterrorism bill. The meeting was arranged by Rick Blum, the director of OpenTheGovernment, a coalition of non-profit organizations concerned about access issues. Kadlec opened the meeting by saying he had already contacted the Congressional Research Service to help “recraft” the bill. He acknowledged that he was surprised by the reaction to the bill, including our letter and the several stories and editorials that have run across the country.
The bill, S1873, creates a new federal agency, the Biomedical Advanced Research and Development Agency, that would oversee development of countermeasures to potential bioterrorism attacks. It would be empowered to contract with academic institutions and pharmaceutical companies for research – and to grant waivers from any liability for the testing or products developed. And the agency and everything it does would be not just exempt but excluded from FOIA and FACA, the open meetings law. There is a separate exclusion from standard government accounting procedures.
Kadlec said he would be willing to meet with a larger group to hear their concerns and Rick Blum is arranging that, probably for next week. Kadlec also invited us to submit alternative language to the blanket exclusions in the bill. And he said he would share any redraft language they come up with. He also said he has a tight timetable, wanting to have an acceptable revision ready by the end of the month so the Senate can move forward in January. The bill is on a fast track. It cleared committee in its first week.
Briefly, here’s Kadlec’s explanation for what was done. They want an agency to facilitate and expedite the development of antidotes and various other counter-bioterrorism measures. And because they recognize that scientific research works best in an open environment, they did not want to go the classification route. They know they’d run into academic opposition to classified research. In addition, classification could slow the process and be costly, especially for smaller pharmaceutical firms. But they want to protect information from potential terrorists on what has been developed and what hasn’t, i.e. where the vulnerabilities are. They didn’t think existing FOIA exemptions were adequate to that task. Thus the total exclusion and creation of a secret agency.
We said we thought the FOIA exemptions were sufficient, and Kadlec indicated he had gotten the same response form the Congressional Research Service, and that the CRS expert on this, Harold Relyea, was pulling together some recommendations. He also agreed that in any rewrite, the agency and its general operations should not be secret. In our discussion, it was clear that the desired “secrecy” was in most instances time sensitive. They don’t want a terrorism to know what has been discovered that works, or about the things that don’t work and thus leave us still vulnerable. But in the world of science, vulnerabilities can change quickly. So we talked about developing some reasonable time limit mechanisms – perhaps putting sunset provisions on individual exemption decisions into the law. And requiring that detailed minutes be kept at any closed meeting and providing that these become public after a certain period of time.
There no question that the stories and editorials and our letter of protest and those of other groups had an impact. We need to keep the attention and pressure on until we’re convinced that what was a terrible piece of legislation that threatened to take secrecy to new depths is corrected. I’ll keep you updated as things develop.
Pete Weitzel
