Secrecy News

Development of a new executive order on classification of national security information is now proceeding at an accelerated pace in order to preempt a deadline that would require the declassification of millions of pages of historical records next month.

A revised draft executive order was circulated to executive branch agencies by the Office of Management and Budget on November 16, with agency comments due back today, November 23.  A final order is likely to be issued by the end of this year.

There is an incentive to complete the development of the executive order before December 31, 2009 because of a deadline for declassification of historical records that falls on that date.  Under the current Bush executive order, classified records that are at least 25 years old and that have been referred from one agency to another because they involve multiple agency interests are supposed to be automatically declassified at the end of this year.  (See E.O. 13292, section 3.3(e)(3)).

But in order to meet this December deadline, several agencies would have to forgo a review of the affected historical records, which they are unwilling to do.  And so it seems they will simply be excused from compliance.  But in order to modify the deadline in the Bush order, it will be necessary to issue another executive order.  If the comprehensive new Obama order on classification policy (which would assign processing of such records to a National Declassification Center that does not yet exist) is not ready for release by December 31, then another stand-alone order would have to be issued, canceling or extending the looming deadline.  And officials are reluctant to issue such an order since they say it would be awkward for the avowedly pro-openness Obama Administration to relax or annul a declassification requirement that was imposed by the ultra-secret Bush Administration.

In fact, the whole process has become an awkward mix of exaggerated and deflated expectations.  The failure of the Bush Administration’s declassification deadline to take hold this year does not augur well for new, more ambitious efforts to advance classification reform.  If the “automatic declassification” procedures that were prescribed in prior executive orders are not “automatic” after all, and if binding deadlines can be extended more or less at will, then any new declassification requirements in the Obama order will be similarly subject to doubt or defiance.

The latest draft executive order has not yet become publicly available, though officials said they expected it to leak, as did a previous draft dated August 4.  “It includes some notable differences” from the earlier draft, said one official.  But another official said “It’s basically the same as the draft you already have.” (See “Draft Order Would Set New Limits on Classification,” Secrecy News, September 29, 2009.)

Ironically, today’s classification system seems to function more effectively in preventing public access to aging archival records than it does with respect to certain present-day information.

Thus, Defense Secretary Robert M. Gates told reporters on November 12, “I have been appalled by the amount of leaking that has been going on” about classified Administration deliberations on Afghanistan policy and other matters.

But from a different point of view, others may be appalled that Secretary Gates’ own Department still retains classification restrictions on historical records dating back to the Korean War, and even from World War II, and that it otherwise resists modernization and correction of the cold war classification system.

Some general background on the national security classification system from the Congressional Research Service can be found in “Security Classification Policy and Procedure: E.O. 12958, as Amended” (pdf), November 3, 2009.

Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Status of the Copenhagen Climate Change Negotiations,” November 5, 2009.

“An Overview of the Nonprofit and Charitable Sector,” November 17, 2009.

“Advertising Industry in the Digital Age,” November 9, 2009.

A new report (pdf) from the U.S. Office of Naval Intelligence describes Iran’s naval order of battle, as well as the Iranian Navy’s history, strategic options, and favored tactics.

“Today, Iran’s naval forces protect Iranian waters and natural resources, especially Iran’s petroleum-related assets and industries.  Iranian maritime security operations guard against the smuggling of illegal goods (especially drugs) and immigrants, and protect against the poaching and stealing of fish in territorial waters.”

“Additionally, Iran uses its naval forces for political ends such as naval diplomacy and strategic messaging.  Most of all, Iranian naval forces are equipped to defend against perceived external threats.  Public statements by Iranian leaders indicate that they would consider closing or controlling the Strait of Hormuz if provoked, thereby cutting off almost 30 percent of the world’s oil supply.”

The unclassified U.S. intelligence assessment was published on the Office of Naval Intelligence website, but last week it was abruptly withdrawn, along with another ONI report on China’s navy.  A copy of the report was obtained by Secrecy News.  See “Iran’s Naval Forces: From Guerilla (sic) Warfare to a Modern Naval Strategy,” Fall 2009.

An ongoing modernization effort has provided China with an increasingly sophisticated and proficient naval force, the U.S. Office of Naval Intelligence (ONI) said in a new assessment (large pdf).

Notably, China has “developed the world’s only anti-ship ballistic missile,” which ONI said was “specifically designed to defeat U.S. carrier strike groups” in the event of military conflict over Taiwan.

“China’s modernization efforts have principally focused on preparing for a Taiwan conflict, with a large portion directed at developing capabilities to deter, delay, and if necessary degrade potential U.S. military intervention,” the ONI report said.

Although China has recently deployed naval vessels far from its shores to protect Chinese shipping from piracy, “it is important to note that none of these operations indicate a desire on the part of the PRC to develop a constant global presence,” ONI said.  “Beijing’s ambition appears to remain focused on the East Asian region, with an ability to protect the PRC’s maritime interests in distant seas when required.”

See “The People’s Liberation Army Navy: A Modern Navy with Chinese Characteristics,” Office of Naval Intelligence, released November 2009 (17 MB PDF file).

The new ONI analysis was first reported by Tony Capaccio in “China’s New Missile May Create a ‘No-Go Zone’ for U.S. Fleet,” Bloomberg News, November 17, 2009.

A marked increase in Chinese submarine patrols last year was reported by Hans Kristensen of the Federation of American Scientists in the FAS Strategic Security Blog.

The Congressional Research Service provided additional information in “China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress” (pdf), updated October 21, 2009.

“In recent years, China has become the world’s fastest growing automotive producer,” according to a new report (pdf) from the Congressional Research Service.

“[China's] annual vehicle output has increased from less than 2 million vehicles in the late 1990s to 9.5 million in 2008. In terms of production volume in 2008, China has surpassed Korea, France, Germany, and the United States, trailing only Japan.”

“China’s automobile industry has continued to expand despite the global economic downturn. From January to October 2009, more than 10 million vehicles were sold in China. If such growth continues, China is on its way to becoming world’s largest auto market,” the CRS said.

See “The Rise of China’s Auto Industry and Its Impact on the U.S. Motor Vehicle Industry,” November 16, 2009.

The role of military commissions in adjudicating the cases of suspected terrorist detainees at Guantanamo and elsewhere was critically examined in two House Judiciary Subcommittee hearings last July, the records of which have just been published.

“My concern remains,” said Rep. Jerrold Nadler (D-NY), who chaired the hearings, “that we may be creating a system in which we try you in Federal court if we have strong evidence, we try you by military commission if we have weak evidence, and we detain you indefinitely if we have no evidence.”

“That is not a justice system,” Rep. Nadler said.

See “Legal Issues Surrounding the Military Commissions System,” July 8, 2009;  and “Proposals for Reform of the Military Commissions System,” July 30, 2009.

The U.S. Army has published the latest edition of its Army Weapon Systems handbook, cataloging dozens of Army weapons with descriptive information, status updates, contractor relationships, and images.

“The systems listed in this book are not isolated, individual products,” the introduction says. “Rather, they are part of an integrated investment approach to make the Army of the future able to deal successfully with the challenges it will face.”

“We have received extraordinary funding support through wartime Overseas Contingency Operations funds, but they have only enabled us to sustain the current fight. We look forward to continued Congressional support to achieve our broad modernization goals.”

A 1988 U.S. Supreme Court decision known as Department of the Navy v. Egan has often been interpreted to support broad presidential authority over national security generally and over access to classified information in particular.  Along with United States v. Reynolds, Curtiss-Wright, and a few other cases, Egan is regularly cited in support of strong, even unchecked executive authority and judicial deference to executive claims.  It has become a cornerstone of national security law as practiced today.

But the case has often been misunderstood and misrepresented, according to a new study (pdf) by Louis Fisher of the Law Library of Congress, who reviewed the development and interpretation of Egan in more than 180 judicial decisions.

The Egan decision was prompted by a narrow statutory dispute:  Did the Merit Systems Protection Board (an executive branch body) have the authority to review the revocation of a security clearance by the Navy (another executive branch body)?  The court concluded that Congress had not intended to permit such review.

But in reaching that straightforward conclusion, “various passages in Egan strayed from this central issue and created confusion and misconceptions” about the scope of executive authority and the role of the courts, wrote Dr. Fisher.  Among such passages was a discussion of the President’s constitutional powers culminating in the statement that “Unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”

Over time, Egan came to signify the notion that courts should grant the “utmost deference” — or even absolute deference — to the executive on issues of national security.  Citing Egan, one court in 1993 held that “the presumption of reviewability is entirely inapplicable in matters concerning national security.”  This is an extreme view that would exclude the courts altogether from national security affairs. “Egan does not support that interpretation,” wrote Fisher.  But there it is.

In a 2002 report on leaks of classified information, Attorney General John Ashcroft cited Egan in support of the proposition that “The President has the power under the Constitution to protect national security secrets from unauthorized disclosure. This extends to defining what information constitutes a national security secret and to determining who may have access to that secret.”  These statements are true except for the implication that such authority is exclusively the province of the executive.  The Attorney General conspicuously neglected to note the qualification in Egan which stated “Unless Congress has specifically provided otherwise….”

Recently, observed Fisher, some courts have presented a more nuanced reading of Egan.  In proceedings such as Al-Haramain and Horn v. Huddle, courts have rebuffed executive arguments for complete deference in cases where Congress has legislated its intent into statute.

Fundamentally, Fisher concludes, “Nothing in Egan recognizes a plenary or exclusive power on the part of the President over classified information.”  See “Judicial Interpretations of Egan“ by Louis Fisher, Law Library of Congress, November 13, 2009.

Dr. Fisher will be the luncheon speaker at a day-long conference November 18 on “The State of the State Secrets Privilege” at American University Washington College of Law.

A new law review article argues that government secrets can be usefully distinguished in terms of “depth”– i.e. “how many people know of their existence, what sorts of people know, how much they know, and how soon they know…. Attending to the depth of state secrets can make a variety of conceptual and practical contributions to the debate on their usage. The deep/shallow distinction provides a vocabulary and an analytic framework with which to describe, assess, and compare secrets, without having to judge what they conceal.”  See “Deep Secrecy” by David Pozen, Stanford Law Review, forthcoming.

A new book revisits the case of Frank Olson, the Army biochemist who fell to his death in 1953 after having been unwittingly dosed with LSD in a CIA experiment.  “A Terrible Mistake: The Murder of Frank Olson and the CIA’s Secret Cold War Experiments” by H.P. Albarelli Jr. was published this month by TrineDay, which says it “specializes in releasing books that are shunned by mainstream publishers due to their controversial nature.”

Closed child welfare hearings in the District of Columbia Family Court should be opened up, argued law professor Matthew I. Fraidin in recent testimony before the D.C. Council.  Open hearings would promote improved protection for the children, increased professionalism by the adult participants, and greater accountability all around, he said.  See “Opening Child Welfare Proceedings in the Family Court of the District of Columbia,” November 4, 2009.

The U.S. intelligence community is making steady progress towards “an advanced state of intelligence integration and information sharing” regarding potential threats to the U.S. and its allies from the sea and the air, according to a new report from the Director of National Intelligence.

“Threats that terrorists and other illicit actors pose to the nation’s ports, waterways and airways remain persistent and grave, leaving no room for error or delay in this effort,” the report (pdf) said.

In response to such threats, a new ODNI National Maritime Intelligence Center has been established, new information sharing protocols have been put in place, and collaborative “communities of interest” have been nurtured. But “challenges remain” in both air and maritime intelligence “to overcome cultural and institutional resistance” to cooperation, particularly given the “sharply diminished” sense of urgency since 9/11.

One enduring difficulty is that “a lack of robust foreign and domestic HUMINT assets hampers the capability to detect and identify place and time of hostile or disruptive actions….”  However, the report says, “examining smuggling networks, front companies, and ‘gray’ actors and transactions has resulted in successful interdictions of people and cargo who clearly pose national security threats.”

The unclassified report did not mention any specific interdictions.  But last month, U.S. forces intercepted a German cargo ship carrying arms from Iran to Syria, according to an October 12 story in Der Spiegel.  Last week, reportedly based on a tip from U.S. intelligence, Israel seized a ship carrying weapons said to be supplied by Iran and intended for Hezbollah fighters.

The DNI report described the formidable intelligence challenges posed by the vast maritime and air domains.

“Worldwide maritime activity includes more than 30,000 ocean-going ships of 10,000 gross tons or greater,” operating under more than 150 different national flags, making tens of thousands of calls at 125 major U.S. ports each year.  Meanwhile, “there are over 43,000 fixed airfields worldwide with over 300,000 active aircraft, making the air domain a dense, complex operating environment with attendant reduced reaction time to potential airborne threats.”

“The economy’s inherent lack of resiliency to a major [trade or transportation] disruption event presents a substantial opportunity for those who seek to attack our institutions asymmetrically,” the report said.

The ultimate intelligence goal, therefore, is nothing less than “to create and maintain a persistent awareness of all aspects of passenger and intermodal cargo conveyance.  This single integrated team approach would permit 24/7 coverage of the entire transportation spectrum….”

The new report is heavy on management jargon, with lots of integration, alignment and leveraging said to be taking place.  (”ODNI remains committed to expediting horizontal intelligence integration supported by the implementation of data sharing standards that are breaking down barriers to information sharing, thereby facilitating rapid decision support.”)

Some of the “successes” touted by the report seem paltry or oversold, such as a “precedent setting conference” on piracy in the Horn of Africa last April which “drew more than 280 attendees.”  And the new ODNI National Maritime Intelligence Center is confusingly housed within the existing National Maritime Intelligence Center that also hosts the Office of Naval Intelligence.  But overall the 62-page report testifies to a level of bureaucratic churning within the intelligence community that rarely leaves a trace on the public record.

A copy of the new report was obtained by Secrecy News.  See “The Inaugural Report of the Global Maritime and Air Communities of Interest Intelligence Enterprises,” Director of National Intelligence, November 2009.