he U.S. Security Policy Board, its subgroups and committees conduct their meetings in private. Only designated government officials and invited defense industry representatives are permitted to attend the gatherings. Due to the extreme sensitivity of the often classified material discussed, this is understandable. But is it legal?
Well, yes and no. According to a draft memorandum prepared by the Justice Department's civil division and delivered to SPB Staff Director Peter Saderholm, much depends upon how the meetings are conducted. If the contractor representatives play too large a role in making security policy decisions, Justice says the board might run afoul of the 1972 Federal Advisory Committee Act (FACA). The law was established to govern the activities of blue ribbon commissions and advisory panels set up to counsel the executive branch.
The confidential draft memo, written by David J. Anderson, director of Justice's federal programs branch, states that a court is likely to find the SPB "exempt from FACA" because it is composed of senior-level government officials. Still, the memo states, "we suggest that federal committees conduct their meetings with consideration that FACA may nonetheless be implicated if the private nonmembers in attendance at the meetings perform functions similar to those of the federal members."
To prevent this from happening, the memo recommends the SPB and its subgroups "consider distinguishing the functions of the private nonmembers from federal members." Also, Justice says it's probably a good idea to avoid "the formulation or adoption of federal policies or recommendations in the presence of private nonmembers."
Jeremy Clark, acting deputy assistant secretary of Defense for intelligence and security and co-chairman of the Security Policy Forum, said he was not aware of the memorandum. And Anderson, the author, refused to comment.
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