SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 115
December 8, 2008

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NATIONAL SECURITY REFORM AND CLASSIFICATION POLICY

"The security classification process ... remains a major impediment to interagency information sharing," a new report from the congressionally-mandated Project on National Security Reform reaffirmed last week.

The 830-page report proposes a significant restructuring of the U.S. government national security decision-making apparatus in order to increase integration and operational agility. The report addresses a range of organizational pathologies that afflict the national security system, and mines the literature on organizational behavior for new approaches to national security policy development and implementation. It grapples with serious issues, and flickers intermittently with insight and fresh thinking.

Unfortunately, although the report devotes sustained attention to classification policy, its analysis of that subject and its resulting recommendations are rather shallow.

"Sharing information across organizational boundaries is difficult... [because] agency cultures discourage information sharing," the report states. But this is a restatement of the problem, not an explanation of it.

"Compartmentalized and obfuscatory classification procedures must be revised," the authors recommend. They vaguely advocate a "common [government-wide] approach for information classification [that] will increase transparency, improve accessibility, and reinforce the overall notion that personnel in the national security system are stewards of the nation's information, not owners thereof."

At the same time, they acknowledge that the much "simpler" problem of establishing a government-wide approach to handling sensitive unclassified information required extensive coordination over a period of years "and its ultimate success is not yet evident."

And so the real upshot of the report's argument is that the classification system cannot be fixed at all, at least not in isolation or on its own existing terms. Rather, the authors argue, the entire national security apparatus must be reconceived and reconstructed to enable extremely agile, ad hoc teams of expert problem solvers drawn from all relevant agencies to temporarily collaborate on a particular issue and then to dissolve.

"Below the president, the national security system must be broken down into structures that easily attach, detach, and reattach with others to solve problems efficiently while remaining accountable to higher authorities who have the responsibility to monitor their performance."

When that idyllic state has been achieved, then classification barriers will also have ceased to be a problem.

See "Forging a New Shield," Project on National Security Reform, November 2008.


SECRET LAW AND THE THREAT TO DEMOCRATIC GOVERNMENT

"The notion of secret law has been described in court opinions and law treatises as 'repugnant' and 'an abomination'," observed Sen. Russ Feingold. "It is a basic tenet of democracy that the people have a right to know the law."

"But the law that applies in this country is determined not only by statutes and regulations, but also by the controlling interpretations of courts and, in some cases, the executive branch. More and more, this body of executive and judicial law is being kept secret from Congress as well," he said.

To probe that subject, Sen. Feingold's subcommittee of the Senate Judiciary Committee held a hearing last April 30, the full record of which has just been published. See "Secret Law and the Threat to Democratic and Accountable Government."

The hearing volume includes newly published responses to questions for the record from John P. Elwood of the Justice Department Office of Legal Counsel, Prof. Dawn E. Johnsen, who is now working with the Obama transition team, former ISOO director J. William Leonard, myself, and others.


A SEAT AT THE OBAMA TRANSITION TABLE

The Obama transition team announced last week that it would provide unrestricted online access to information and documents submitted by outside groups and individuals.

"Every day, we meet with organizations who present ideas for the Transition and the Administration, both orally and in writing," wrote transition co-chair John Podesta in a December 5 memo. "We want to ensure that we give the American people a 'seat at the table' and that we receive the benefit of their feedback."

One might think that the disclosure of advice and recommendations contributed by outside parties is a small, easy step to take. But remarkably, such outside advice has often been kept secret. Most famously, Vice President Cheney fought to preserve the secrecy of his 2001 Energy Task Force.

Even non-zealots like the members of the CIA Historical Review Panel (HRP) have surrendered to secrecy. "Because the HRP's advice to the DCIA must be completely frank and candid, we are not reporting Panel recommendations," wrote panel chair Prof. Robert Jervis of Columbia University in the Panel's latest statement, implying strangely that his panel is unable to express its views on CIA classification policy candidly in public. There is no indication so far that would-be Obama advisors feel any similar constraint.

The broader significance of the new Obama transition team policy was assessed by John Wonderlich of the Sunlight Foundation in "Obama and Affirmative Disclosure."


HUMANITARIAN AID AND MEDICAL DIPLOMACY

The Department of Defense has updated its policy on "humanitarian and civic assistance activities," which are "conducted in conjunction with authorized military operations" abroad. See DoD Instruction 2205.02, December 2, 2008.

Medical assistance is a potentially important element of counterinsurgency operations in Afghanistan, argued a senior military medical officer earlier this year. See "The Role of Medical Diplomacy in Stabilizing Afghanistan," by Donald F. Thompson, Defense Horizons, May 2008. (Interestingly, however, he noted that such assistance can sometimes backfire by "undercutting the confidence of the local population in their own government's ability to provide essential services.")

Former Republican Senate Majority Leader and physician Bill Frist has called for increased investment in medical diplomacy, and warned against letting U.S. adversaries win the medical equivalent of an arms race.

"We cannot allow countries in direct security and economic competition with America (or terrorist organizations seeking to harm the United States and our allies) to use health diplomacy as a means of building new alliances, attracting new followers, or otherwise strengthening their position vis--vis our nation," he wrote in the Yale Law and Policy Review (Fall 2007).

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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