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Originally published Sunday, September 11, 2011 at 9:00 PM

Does Navy depot pose a danger to public?

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. And it's been six months since the U.S. Supreme Court struck down one of the Navy's grounds for rejecting Milner's request under the Freedom of Information Act. Now the Department of Defense is back in U.S. District Court in Seattle, where it's pursuing its second legal argument.

Seattle Times Washington bureau

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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.

Might flying steel fragments blast downtown Port Townsend, just a couple of miles across the bay? What is the emergency response plan at the military's biggest ordnance-storage site on the West Coast?

And it's been six months since the U.S. Supreme Court struck down one of the Navy's grounds for rejecting Milner's request under the Freedom of Information Act (FOIA). Milner's victory was a significant test for public disclosure, and reined in the expanding use of an exemption that was originally conceived to protect only personnel information such as salaries and job evaluations.

Yet Milner, of Lake Forest Park, may never see those Navy maps.

The Department of Defense is back in U.S. District Court in Seattle, where it's pursuing its second legal argument. The Navy contends 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, the Navy may ultimately get its way. That's because the 2012 defense-authorization bill 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 about Indian Island.

Milner has appealed to Sens. Patty Murray and Maria Cantwell, both D-Wash., to block the legislative change, but chances appear dim. Sen. Patrick Leahy, D-Vt., 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."

Milner's FOIA battles

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 opponents of nuclear weapons protesting outside the Navy's Trident nuclear- submarine base at Bangor, on Hood Canal. While demonstrators were waiting on the tracks nearby, a Bangor-bound train carrying missile parts derailed south of Shelton.

Officials insisted at the time that the train carried no explosives. But documents Milner obtained a year later through FOIA revealed a lie. The shipment actually included six propellant-loaded Trident missile motors with combined explosive weight exceeding 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 had repeatedly trucked nuclear warheads to Bangor on highways in an attempt to bypass protesters blocking rail tracks. That violated an agreement hashed out by the late 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.

The 5-mile-long island nestles alongside residential Marrowstone Island at the mouth to Puget Sound. The naval base there handles bombs, torpedoes, bullets and other ammunition for all five branches of the military. The Navy's biggest container crane is stationed at the island's northwest tip, where the ammunition pier can accommodate superclass-sized aircraft carriers.

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 enough apart to prevent chain reactions.

The Navy refused to provide the details, saying that releasing explosives data would threaten the safety of people working 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 internal personnel records, while Exemption 7 covers law-enforcement investigative records.

The U.S. District Court agreed with the Navy's interpretation of Exemption 2, and granted a summary judgment. The Ninth Circuit Court of Appeals in San Francisco upheld the ruling.

Seeing a chance to finally settle conflicting lower-court opinions on what constitutes "personnel rules and practices," the Supreme Court accepted Milner's appeal. The justices affirmed that Congress drafted FOIA to disseminate, not withhold, information. In its 8-1 ruling, the court complained that the Navy had so twisted the meaning of "personnel" to fit its logic that "the government's definition eludes us."

"We just made landmark law," said Mann, whose three-person Seattle firm, Gendler & Mann, represented Milner for free. "This court completely eliminated 30 years of expanding Exemption 2 so broadly that it could cover everything."

New provision

The Supreme Court, however, also acknowledged that the Navy has a strong security interest in shielding the explosives data and maps. The justices suggested 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 do not 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 for a vote in the Senate in the coming weeks.

Mayor Michelle Sandoval said the provision had been "drafted to circumvent" the Supreme Court ruling and stemmed from "an unnecessary desire for secrecy on the part of the Department of Defense."

Steven Aftergood, director of The Project on Government Secrecy at the Federation of American Scientists, has followed Milner's case from a distance. Aftergood said government agencies can often be capricious in holding back information that should be public.

The Federation sued the CIA in 1999 after its then-director, George Tenet, refused to disclose the total national intelligence budget. That same figure had been made public in 1997 and 1998. It took until 2010 for Americans to once again learn how much the government was spending on civilian and military intelligence.

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, for the first time quantified part of the potential danger. A massive explosion would be "extraordinarily dangerous" to base personnel, Martin said, but the blast would not reach Port Townsend.

Martin pegged the maximum potential building damage at 5 percent of replacement value, meaning that windows facing Indian Island might shatter. A large storm might leave similar damage, he said.

Milner, who speaks with unassuming deliberation, says that scenario may or may not be accurate; the public can't judge for itself. A member of Ground Zero Center for Nonviolent Action, an anti-nuclear group based in Poulsbo, Milner knows well how 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," he said.

Kyung Song: 202-662-7455 or ksong@seattletimes.com

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