Secrecy News Blog: http://www.fas.org/blog/secrecy/
OBAMA ORDERS REVIEW OF CLASSIFICATION POLICY
President Obama last week formally initiated a review of national security classification policy, directing the National Security Adviser to prepare recommendations for revising the current executive order on classification.
"My Administration is committed to operating with an unprecedented level of openness," the President wrote on May 27. "While the Government must be able to prevent the public disclosure of information where such disclosure would compromise the privacy of American citizens, national security, or other legitimate interests, a democratic government accountable to the people must be as transparent as possible and must not withhold information for self-serving reasons or simply to avoid embarrassment."
The President's memo specifically identifies "overclassification" as a "problem" and invites recommendations for "greater openness and transparency." However, both the memo's diagnosis and its own suggested remedies are quite superficial.
For example, the memo does not address the need to revise and update the criteria for classification. And it does not require an inquiry into the role of "need to know" restrictions, if any, in a networked information environment.
The memo proposes a National Declassification Center to facilitate collaborative declassification review. This is a welcome idea that would eliminate costly, time-consuming sequential reviews of records for declassification. But without changes to classification criteria, the Center would continue to produce the same results as before, only more quickly. Thus, if the CIA thinks that fifty year old intelligence budget figures should remain classified, which it does, the mere existence of a Declassification Center would do nothing to correct such an error in judgment.
The memo also suggests restoring a presumption against classification "where there is significant doubt about the need for such classification." This sounds fine, but because doubt (or even "significant doubt") is an unverifiable mental state, it cannot serve as a basis for classification policy. When a similar presumption was included in past executive orders, it had no identifiable effect on agency classification practices. (The only possible role for such a provision is if the "doubter" is a different person than the "classifier." In other words, if an independent auditor or overseer "doubted" the need for certain information to be classified, he or she might usefully be authorized to cancel its classification. But that would be a new policy measure, not a restored one.)
A response to the President's memorandum is due within 90 days. In the same May 27 memorandum, the President also called for a review of restrictions on so-called "controlled unclassified information."
In April 1993, President Clinton issued his own directive to undertake reforms of classification policy. Many of the questions posed in that directive are persistent and remain unresolved today, including: What types of information continue to require protection through classification in the interest of our national security? And, What steps can be taken to avoid excessive classification? See Presidential Review Directive 29, April 26, 1993:
In a paper that should be published later this month in the Yale Law and Policy Review, I attempted to identify the conditions for successful reform of government secrecy policy.
SECRECY CONCEALS SOME CLASSIFICATION COSTS
Following sharp increases in the first several years after 9/11, the total estimated costs of implementing the national security classification system seem to have leveled off at around $10 billion annually, according to a new report to the President from the Information Security Oversight Office. The total cost of protecting classified information in government and industry last year was $9.85 billion, down slightly from $9.9 billion the year before, ISOO director William J. Bosanko reported.
The May 19 ISOO report also provided a striking reminder of the tide of secrecy that has silently and inexorably concealed previously public information in recent years.
When classification cost data were first reported in April 1994 (at the initiative of then-Rep. David Skaggs of Colorado), the CIA made the surprising claim that its classification costs were classified. This was understood by outside observers such as Sen. Daniel P. Moynihan as a familiar expression of CIA's excess of zeal. No one seriously believed that it was a legitimate national security issue, particularly because the cost data involved were rough estimates, not actual expenditures. As if to confirm that assessment, the classification costs incurred by all other intelligence agencies were incorporated as a matter of course in the ISOO cost reports each year through 2005.
But since 2006, the CIA's silly secrecy has become prevalent in the intelligence community and other agencies have adopted the claim that their estimated classification costs are national security secrets too. In the latest ISOO report to the President, Mr. Bosanko noted that the cost estimates for CIA, DIA, ODNI, NGA, NRO, and NSA were all classified "in accordance with Intelligence Community classification guidance."
"Understanding the financial costs associated with keeping information secret is essential to any effort to begin scaling back the scope of secrecy and making protection more efficient," according to the 1997 Report of the Moynihan Commission (page 9). Such an effort is naturally frustrated when classification itself is used to conceal those costs.
The tiny Muslim community of Bolivia was surveyed in a recent report from the DNI Open Source Center. The OSC report "is an overview of mosques, Islamic organizations, and religious leaders in Bolivia and their susceptibility to foreign Islamist influence."
Like many OSC products, this item has not been approved for public release. A copy was obtained by Secrecy News. See "Bolivia -- Key Muslim Converts Assert Local Peril, Ally With Zealots Abroad," Open Source Center, May 12, 2009:
A PROFILE OF THE OFFICE OF LEGAL COUNSEL
The organization, role and operation of the Office of Legal Counsel (OLC), which produces binding interpretations of the law for the executive branch, are usefully described in the Justice Department's FY 2010 budget request.
"OLC’s mission remains highly critical and urgent as the Department enters into a new era of responsibility confronting national security and intelligence challenges, reinvigorating federal civil rights enforcement, and advising the myriad of agencies involved in responding to the economic crisis," the budget request document states. "The Office is operating at a particularly challenging time, when a number of major legal positions of the United States government are under review or in the process of being changed."
Under the Bush Administration, the OLC notoriously issued numerous opinions -- many of which would later be withdrawn under criticism -- authorizing abusive interrogation, warrantless surveillance, and other departures from established legal norms. The President's distinguished nominee to head the Office, Prof. Dawn Johnsen, still awaits Senate confirmation and she reportedly faces opposition from some Senate Republicans.
US DECLARES NUCLEAR SITES TO THE IAEA
A compilation of hundreds of U.S. nuclear sites and activities that were to be declared to the International Atomic Energy Agency by the United States was transmitted to Congress last month by President Obama.
"The enclosed draft declaration lists each site, location, facility, and activity I intend to declare to the IAEA, and provides a detailed description of such sites, locations, facilities, and activities, and the provisions of the U.S.-IAEA Additional Protocol under which they would be declared," the President wrote. "Each site, location, facility, and activity would be declared in order to meet the obligations of the United States of America with respect to these provisions."
"The IAEA classification of the enclosed declaration is 'Highly Confidential Safeguards Sensitive'," the President noted in his May 5, 2009 transmittal letter, "however, the United States regards this information as 'Sensitive but Unclassified'."
But sensitive or not, the draft declaration was promptly published by the Government Printing Office. See "The List of Sites, Locations, Facilities, and Activities Declared to the International Atomic Energy Agency," message from the President of the United States, May 6, 2009 (267 pages, 13 MB PDF file):
******************************
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html
To UNSUBSCRIBE, go to:
http://www.fas.org/sgp/news/secrecy/unsubscribe.html
OR email your request to saftergood@fas.org
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html
Secrecy News Blog: http://www.fas.org/blog/secrecy/
ONLINE TRANSPARENCY DISCUSSIONS MOVE FORWARD
An innovative White House attempt to engage the interested public in the development of government policy on openness and transparency is moving briskly and, so far, productively. An initial online brainstorming session attracted over 98,000 visits and generated some 2,450 "ideas" for increasing public access to government information, over 11,000 comments on those ideas, and over 200,000 votes in favor or against them.
The process threatened to become overwhelmed by the sheer number of proposals, not all of which were clearly focused or formulated, and some of which were eccentric or irrelevant (legalize marijuana!). But the White House Office of Science and Technology Policy team that is managing the process was able to distill the best suggestions into a substantive but digestible core.
The next step is an online discussion of the particular proposals that is intended to flesh them out and to convert "lofty principles into specific actions" that the executive could take, said Dr. Beth Noveck, the OSTP Deputy Chief Technology Officer for Open Government. Interested members of the public are invited and encouraged to participate in the process. To catch up on the latest developments, see the OSTP Open Government blog:
Other White House efforts to address overclassification and the spread of official controls on unclassified information have received a less enthusiastic reception. Critics (including Secrecy News) expressed concern that these initiatives may be insufficiently ambitious in conception and that they provide no formal mechanism for public input. See "Critics Blast Obama Classification Review" by Justin Rood, ABC News The Blotter, June 3, 2009:
A FEW INTELLIGENCE SCIENCE BOARD REPORTS
There is "an astonishing number of groups and activities concurrently pursuing the subject" of information sharing, according to a newly disclosed 2004 report of the Intelligence Science Board (ISB). But those activities are not well coordinated. "In effect, we aren't even sharing information about information sharing."
The ISB is a little-known advisory panel that addresses intelligence science and technology issues at the direction of the Director of National Intelligence. Almost all of its products are classified, but a few are not.
It's hard to say whether the ISB is influential. But it has performed important and interesting work, most notably on the science of interrogation. Its 2006 report on "Educing Information," concluded that there was no scientific evidence to support a belief in the efficacy of coercive interrogation. ("Intelligence Science Board Views Interrogation," Secrecy News, January 15, 2007.)
Now the only other unclassified ISB reports have been released by ODNI under the Freedom of Information Act: "Concept Paper on Trusted Information Sharing" (November 2004) and "What Makes for a Great Analytic Team?: Individual versus Team Approaches to Intelligence Analysis" (February 2005). All of the unclassified ISB reports are available here:
THE STATE SECRETS PRIVILEGE, AND MORE FROM CRS
The Congressional Research Service has prepared a new account of the state secrets privilege, which is used by the government to bar disclosure of certain national security information in the course of civil litigation. While the CRS report contains nothing new, it is a detailed, dispassionate and fairly comprehensive account of the subject. A copy was obtained by Secrecy News. See "The State Secrets Privilege and Other Limits on Litigation Involving Classified Information," May 28, 2009:
Other notable new CRS products that have not been made publicly available include the following.
"Major U.S. Arms Sales and Grants to Pakistan Since 2001" (fact sheet), updated June 3, 2009:
"Political Turmoil in Thailand and U.S. Interests," May 26, 2009:
"The 2009 Influenza A(H1N1) 'Swine Flu' Outbreak: An Overview," May 20, 2009:
"Defense: FY2010 Authorization and Appropriations," May 8, 2009:
"Medical Marijuana: Review and Analysis of Federal and State Policies," March 31, 2009:
******************************
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html
To UNSUBSCRIBE, go to:
http://www.fas.org/sgp/news/secrecy/unsubscribe.html
OR email your request to saftergood@fas.org
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html
Secrecy News Blog: http://www.fas.org/blog/secrecy/
SOMETHING "VERY WRONG" IN STATE DEPT HISTORY OFFICE
An Inspector General review of the State Department Office of the Historian (HO) last month confirmed that there were serious management defects in the Office and recommended reassignment of its Director as well as other changes.
The Office of the Historian is responsible for production of the Foreign Relations of the United States (FRUS) series, which is the official documentary history of U.S. foreign policy and one of the most important vehicles for declassification of historical records.
Allegations of mismanagement and declining performance had surrounded the Office for years until the Chairman of the State Department Historical Advisory Committee, Prof. Wm. Roger Louis, resigned last December to dramatize his concerns that the FRUS series was "at risk." (See "State Dept: Crisis in the 'Foreign Relations' Series," Secrecy News, December 11, 2008).
"In varying degrees, nearly 75 percent of the present HO employees interviewed ... were critical of the way the office is run," the IG reported. "They alleged favoritism, cronyism, a lack of transparency, lack of interest in the FRUS, disparagement of the staff, suspicion, an absence of leadership, and, in general, the creation of an unhappy workplace."
With plummeting employee morale and departures of experienced staff historians, "something in HO is very wrong," the Inspector General concluded. "HO is suffering from, and has for some time been handicapped by, serious mismanagement for which the director must be held accountable.... Despite any mitigating factors that may exist in favor of the director, this situation cannot be allowed to continue."
"It is a devastating indictment," said Prof. Warren Kimball, a Rutgers historian who chaired an initial review of the situation earlier this year. "Clearly the IG inspectors listened to what we had to say. It does give one some faith in the State Department's internal monitoring system -- slow as it is."
The IG recommended reassignment of the Director, Dr. Marc Susser, to another Department position, and he was in fact reassigned last month. On May 27, the State Department appointed Ambassador John Campbell to serve as the new Acting Director of the Office of the Historian. (See "After Critical Report, State Dept.'s Historian is Reassigned" by Walter Pincus, Washington Post, June 8, 2009.)
See "Management Review of the Office of the Historian," State Department Office of Inspector General, May 2009:
The IG review also underscored the difficulties facing the FRUS series, which is supposed to present a "thorough, accurate, and reliable" documentary account of U.S. foreign policy within 30 years of the events described. In the past, the foreign policy of the Eisenhower Administration was covered in 66 volumes of FRUS. Despite a richer and more complex record, the Nixon-Ford years were allocated only 57 volumes. For the Reagan Administration, which has a fuller record still, only 38 FRUS volumes are planned.
Under present circumstances, the task of the FRUS series, although mandated by law, is "almost unachievable," the IG said.
HOMELAND SECURITY INTEL: OPERATIONS AND OVERSIGHT
The Department of Homeland Security's intelligence mission is to collect, analyze and disseminate intelligence to reduce the threat of domestic terrorism. The somewhat complex structure of DHS intelligence, at DHS headquarters and in six operational components, is illuminated in a new report from the Congressional Research Service.
The new report usefully examines how DHS intelligence is organized to address threat warnings, border security, critical infrastructure protection, and information sharing. It also considers congressional oversight of DHS intelligence. See "The Department of Homeland Security Intelligence Enterprise: Operational Overview and Oversight Challenges for Congress," May 27, 2009:
Though it is far from the most urgent or important question facing homeland security intelligence, Congress is pulling out all the stops to investigate the origin of a controversial, inartfully worded DHS intelligence memo on "Rightwing Extremism." Last week, the House Homeland Security Committee approved a formal resolution of inquiry to demand documents related to the preparation of that memo. See:
AFGHAN ELECTIONS: CANDIDATES AND POWERBROKERS
The leading presidential candidates in Afghanistan's upcoming August 20 election are briefly profiled in a chart prepared by the DNI Open Source Center. See "Afghan Presidential Election: Potential Candidates and Powerbrokers," May 4, 2009:
Further background on elections in the region may be found in "Middle East Elections 2009: Lebanon, Iran, Afghanistan, and Iraq," Congressional Research Service, May 18, 2009:
(Elections in Lebanon took place on June 7.)
IDENTITY THEFT, AND MORE FROM CRS
Noteworthy new reports from the Congressional Research Service obtained by Secrecy News include the following.
"Mexico's Drug-Related Violence," May 27, 2009:
"The 2009 Influenza A(H1N1) 'Swine Flu' Outbreak: U.S. Responses to Global Human Cases," May 26, 2009:
"The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11," updated May 15, 2009:
"USAID's Office of Transition Initiatives After 15 Years: Issues for Congress," May 27, 2009:
"Airport Improvement Program (AIP): Reauthorization Issues for Congress," May 29, 2009:
"Identity Theft: Trends and Issues," May 27, 2009:
Employment disputes are all too common inside and outside of government, including at the CIA. In one pending lawsuit, a former CIA employee claimed that the Agency improperly terminated his employment and communicated negative information about him to another prospective employer, thereby violating his rights.
In this case, however, the name of the aggrieved employee is a national security secret.
"As plaintiff's true name is classified, he has been permitted to file as 'Peter B.'," according to a recent court ruling, in which Judge Richard W. Roberts rejected the CIA's motion to dismiss the case. "Peter B's" attorney, Mark S. Zaid, whose name is not classified, welcomed the June 1 opinion.
******************************
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html
To UNSUBSCRIBE, go to:
http://www.fas.org/sgp/news/secrecy/unsubscribe.html
OR email your request to saftergood@fas.org
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html
Secrecy News Blog: http://www.fas.org/blog/secrecy/
CLASSIFICATION AND THE "DESCENT INTO TORTURE"
The public has been significantly misled and misinformed concerning the practice of abusive interrogation by the U.S. government and the resulting damage to American political institutions, said Senator Sheldon Whitehouse (D-RI) on the Senate floor yesterday.
"I am very sorry to say this--but there has been a campaign of falsehood about this whole sorry episode. It has disserved the American public. As I said earlier, facing up to the questions of our use of torture is hard enough. It is worse when people are misled and don't know the whole truth and so can't form an informed opinion and instead quarrel over irrelevancies and false premises. Much debunking of falsehood remains to be done but cannot be done now because the accurate and complete information is classified," Sen. Whitehouse said.
"I want my colleagues and the American public to know that measured against the information I have been able to gain access to, the story line we have been led to believe--the story line about waterboarding we have been sold--is false in every one of its dimensions."
He itemized several statements he said were demonstrably untrue, beginning with the declaration by President Bush that "America does not torture."
He said a structured investigation was needed into what he called "America's descent into torture." First, it is necessary to document what was done, under what conditions, and to what end. A second set of questions concerns "how this was allowed to happen." Finally, a rigorous debunking of erroneous and false assertions is needed.
Classification policy is an obstacle to the achievement of all of these objectives, he said, especially the latter: "At the heart of all these falsehoods lies a particular and specific problem: The 'declassifiers' in the U.S. Government are all in the executive branch. No Senator can declassify, and the procedure for the Senate as an institution to declassify something is so cumbersome that it has never been used."
RECENT CONGRESSIONAL ACTIONS AND PUBLICATIONS
Senators Joe Lieberman and Lindsey Graham said they would do their utmost to block the release under the Freedom of Information Act of photographs documenting the abuse of detainees held in U.S. custody. "Such a release would be tantamount to a death sentence to some who are serving our nation in the most dangerous and difficult spots like Iraq and Afghanistan," they said, urging passage of an amendment to exempt any such photographs from the FOIA.
Rep. Jane Harman introduced legislation to terminate the National Applications Office, the DHS organization that would employ intelligence satellite imagery for homeland security and domestic law enforcement purposes. DHS has failed to provide a legal framework and justification for the program, she said, and therefore "Operation of the NAO in its current state poses serious constitutional questions and threatens to violate the privacy of Americans and their civil liberties."
Senator Russ Feingold and several colleagues in both parties introduced a resolution that would strengthen the Senate Intelligence Committee by giving it the power to appropriate as well as authorize funds for intelligence. The move is needed, the resolution said, "to provide vigilant legislative oversight over the intelligence activities of the United States to ensure that such activities are in conformity with the Constitution and laws of the United States."
The record of a July 2006 hearing before the Senate Judiciary Committee entitled "Hamdan v. Rumsfeld: Establishing a Constitutional Process" was published in April 2009, with supplementary material for the record.
Another Senate Judiciary Committee hearing volume from a June 2006 hearing on "The Use of Presidential Signing Statements" was also published in April 2009.
CONGRESSIONAL ACCESS TO NATIONAL SECURITY INFO
Executive branch officials understandably seek to maximize their authority to regulate the distribution and disclosure of classified national security information, and they often cite historical precedents dating back to the days of President George Washington to justify their claims. But though some members of Congress seem not to realize it, Congress has an independent claim to access such information, a claim with its own historical foundation.
A new analysis by Louis Fisher of the Law Library of Congress provides a nuanced account of several episodes from the Washington Administration that tend to refute the more expansive views of executive branch authority over classified information.
"Upon closer examination, precedents from the Washington Administration do not support the claim of exclusive and plenary authority by the President," Dr. Fisher writes. "The scope of the President's power over national defense and foreign affairs depends very much on what Congress does in asserting its own substantial authorities in those areas," he concludes.
See "Congressional Access to National Security Information: Precedents from the Washington Administration" by Louis Fisher, Law Library of Congress, May 22, 2009:
DECLASS PANEL HELPS OVERCOME REFLEXIVE SECRECY
One of the most successful innovations in the otherwise mostly stagnant domain of classification policy was the creation of the Interagency Security Classification Appeals Panel (ISCAP), an executive branch entity that was established by President Clinton's 1995 executive order 12958.
For over a decade, the ISCAP has maintained an astonishing record of ordering the declassification of information in a majority of the documents that have been presented for its review. In each of those cases, the Panel effectively overruled the classification judgment of one of its own member agencies. There are policy lessons to be learned from this experience concerning the often poor quality of routine classification actions and the value of extending declassification authority beyond the originating agency.
Bill Burr of the National Security Archive recently prepared a thoughtful overview of the creation and the operation of the ISCAP, together with a compilation of several of the latest documents that it approved for release. See "The Secrecy Court of Last Resort: New Declassification Releases by the Interagency Security Classification Appeals Panel (ISCAP)," National Security Archive Electronic Briefing Book, June 5:
FURTHER DECLASSIFICATION OF REAGAN-ERA DIRECTIVES
One of the minor offenses of the Obama White House is its inexplicable failure to publish presidential directives -- now dubbed Presidential Policy Directives -- even when they are unclassified. But presidential directives from prior administrations continue to enter the public domain following repeated declassification reviews.
Several National Security Decision Directives (NSDDs) issued by President Reagan were released in full or with fewer redactions last April at the Reagan Library:
NSDD 12 on "Strategic Forces Modernization Program" was released in its entirety. A section on submarine launched missiles that was censored in a prior declassification review was restored, along with other redactions (thanks to www.thereaganfiles.com):
NSDD 35 on "The M-X Program" was also released in full, including two previously censored paragraphs:
NSDD 21 on "Responding to Floggers in Cuba" was released with one paragraph still redacted but several previous redactions now disclosed (Floggers are Soviet MiG-23 fighter aircraft):
Other NSDDs that have undergone declassification review in recent years leading to significant additional disclosures include the following:
NSDD 139, "Measures to Improve U.S. Posture and Readiness to Respond to Developments in the Iran-Iraq War," April 5, 1984, including previously withheld passages concerning Saudi Arabia and Egypt (2007).
NSDD 141, "Responding to Escalation in the Iran-Iraq War," May 25, 1984 (2007).
NSDD 147, "U.S. Policy Towards India and Pakistan," October 11, 1984 (2007).
A NEW HISTORY OF THE NATIONAL SECURITY AGENCY
"The Secret Sentry" by Matthew Aid is a comprehensive new history of the National Security Agency, from its origins in World War II through its Cold War successes, failures and scandals up until the present.
Aid, an independent historian who is also a visiting fellow at the National Security Archive, has synthesized a tremendous amount of research into a narrative that is highly readable and sometimes gripping. All of the familiar stops are there, including the Truman memo of 1952 that established the Agency, the Gulf of Tonkin incident, KAL 007, 9/11 and on to today.
But the book also includes quite a bit of unfamiliar historical material, and almost any reader is likely to discover something new and interesting. I learned, for example, that a few months after seizing the USS Pueblo in 1968, North Korea published a book in French containing the full text of many captured NSA documents, some of which, Mr. Aid says, are still considered to be classified today (p. 142).
What will make The Secret Sentry indispensable to researchers are its nearly one hundred pages of endnotes, which constitute a unique finding aid to the most current archival releases, internal agency histories, and other valuable records. Some of the documents gathered by Mr. Aid in the course of his decades of research later vanished from public stacks at the National Archives, prompting him to realize that some government agencies were silently -- and often improperly -- reclassifying declassified records. Portions of those now inaccessible records have been integrated into this new history.
Inevitably, the book contains some minor errors. Mr. Aid repeats an assertion by the 9/11 Commission that Osama bin Laden was alerted to NSA monitoring of his satellite phone as the result of a 1998 news story that appeared in the Washington Times (p. 383, note 69). But he neglects to note that this assertion has been effectively refuted. (See, e.g., "File the Bin Laden Phone Leak Under 'Urban Myths'" by Glenn Kessler, Washington Post, December 22, 2005.)
The author is generous in his citations to the leading authors in the intelligence field, from David Wise and David Kahn to Seymour Hersh and Jeffrey Richelson and other less celebrated writers -- with one strange and disconcerting exception. There is not a single reference in the entire book to James Bamford, whose 1983 book The Puzzle Palace, among others, blazed the trail that The Secret Sentry follows. Perhaps Mr. Aid felt it was necessary to ignore Mr. Bamford so as not to be constantly agreeing or disagreeing with him, and confirming or disputing his accounts. If that is the case, he ought to have said so.
The Secret Sentry is being published this week by Bloomsbury Press.
******************************
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html
To UNSUBSCRIBE, go to:
http://www.fas.org/sgp/news/secrecy/unsubscribe.html
OR email your request to saftergood@fas.org
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html
Secrecy News Blog: http://www.fas.org/blog/secrecy/
WHITE HOUSE INTEL ADVISORY BOARD HAS NO MEMBERS
President Obama has still not appointed anyone to the President's Intelligence Advisory Board (PIAB), Secrecy News has learned.
The PIAB has broad responsibility for conducting internal executive branch oversight of intelligence, and it is specifically charged with alerting the President to intelligence activities that may be unlawful or contrary to executive order or presidential directive. Although the PIAB rarely releases its findings to the public, it is positioned to play a potentially important role in the intelligence oversight process. Its actual performance seems to depend on the qualifications of Board members, which have sometimes been minimal, as well as the receptivity of an Administration to the oversight process.
Without any members, the PIAB is "kind of running on autopilot," said Homer Pointer, counsel to the Board. But he added that "day to day intelligence oversight marches on," particularly since the Director of National Intelligence and relevant department heads are required by executive order to report to the Board on a regular basis.
The Boston Globe reported last year that President Bush had "stripped the Board of much of its authority" ("President weakens espionage oversight" by Charlie Savage, March 14, 2008) but Mr. Pointer disputed that assessment.
News reports in January 2009 indicated that President-elect Obama had asked former DNI J. Michael McConnell to serve on the PIAB. But for whatever reason, a formal appointment of Mr. McConnell has not yet been made, Mr. Pointer said, nor have any other members of the Board been designated.
"We are hopeful that a new Board will be named soon," Mr. Pointer said.
"SENSITIVE" INFO IN THE CONGRESSIONAL RECORD
Rep. Frank Wolf (R-VA) placed two "sensitive but unclassified" (SBU) State Department documents in the Congressional Record last week, illustrating the informal, non-binding character of this information control marking.
Rep. Wolf took to the House floor to express his views on the Council on American-Islamic Relations (CAIR), an advocacy organization that he said had unacceptable links to terrorist groups. CAIR (www.cair.com) has generally disputed such allegations.
But what is of interest here is Rep. Wolf's willingness to introduce two State Department cables that are specifically marked "sensitive" and "SBU" and to place them in the public record. Doing so might annoy the State Department and violate unofficial norms of confidentiality, but it breaks no law.
The problematic aspect of SBU and similar labels is that anyone can mark anything "sensitive" or "for official use only" for any reason. The system is completely unregulated. But the flip side is that records bearing such markings are not rigorously protected and in fact are often openly distributed.
As the government moves to replace all kinds of SBU markings with a more uniform "controlled unclassified information" (CUI) system, the expectation is that the standards for applying controls on sensitive but unclassified records will be more clearly articulated, limited and enforced. By the same token, however, the freewheeling disclosure of such records may grind to a halt. It's hard to know in advance if the benefits in terms of public access to government information will exceed the costs.
A CLASSIFIED OBJECTION TO GEN. MCCHRYSTAL
Gen. Stanley McChrystal was confirmed by the Senate last week to be the new commander of U.S. (and NATO) forces in Afghanistan, a role that he assumed today. But his nomination was opposed by Sen. Russ Feingold (D-WI) who objected to the General's advancement on unspecified "classified" grounds.
"I oppose the nomination of LTG Stanley McChrystal to command U.S. forces in Afghanistan for two reasons," Senator Feingold said on June 11. "The first relates to a classified matter about which I have serious concerns. I have conveyed those concerns in a letter to the President."
The second reason cited by Sen. Feingold was McChrystal's embrace of interrogation techniques that went beyond those authorized in the Army Field Manual on the subject.
DOD ROLE DURING FLU PANDEMICS, AND MORE FROM CRS
Noteworthy new reports from the Congressional Research Service obtained by Secrecy News include the following.
"Comprehensive Nuclear Test Ban Treaty: Updated 'Safeguards' and Net Assessments," June 3, 2009:
"The Role of the Department of Defense During a Flu Pandemic," June 4, 2009:
"Congressional Oversight and Related Issues Concerning International Security Agreements Concluded by the United States," June 2, 2009:
"The President's Office of Science and Technology Policy: Issues for Congress," updated June 3, 2009:
"Landsat and the Data Continuity Mission," May 22, 2009:
"Geospatial Information and Geographic Information Systems (GIS): Current Issues and Future Challenges," June 8, 2009:
******************************
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html
To UNSUBSCRIBE, go to:
http://www.fas.org/sgp/news/secrecy/unsubscribe.html
OR email your request to saftergood@fas.org
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html
Secrecy News Blog: http://www.fas.org/blog/secrecy/
9/11, INFO SHARING AND "THE WALL"
The rise of "the wall" between intelligence and law enforcement personnel that impeded the sharing of information within the U.S. government prior to September 11, 2001 was critically examined in a detailed monograph that was prepared in 2004 for the 9/11 Commission. It is the only one of four staff monographs that had not previously been released. It was finally declassified and disclosed earlier this month.
In April 2004, Attorney General John Ashcroft testified that the failure to properly share threat information in the summer of 2001 could be attributed to Justice Department policy memoranda that were issued in 1995 by the Clinton Administration. That is an erroneous oversimplification, the staff monograph contends: "A review of the facts... demonstrates that the Attorney General's testimony did not fairly and accurately reflect" the meaning or relevance of those 1995 policy documents. For one thing, those policies did not even apply to CIA and NSA information, which could have been shared with law enforcement without any procedural hurdles.
But if Attorney General Ashcroft was misinformed, he was not alone. The 1995 procedures governing information sharing between law enforcement and intelligence "were widely misunderstood and misapplied" resulting in "far less information sharing and coordination... than was allowed." In fact, "everyone was confused about the rules governing the sharing and use of information gather in intelligence channels."
"The information sharing failures in the summer of 2001 were not the result of legal barriers but of the failure of individuals to understand that the barriers did not apply to the facts at hand," the 35-page monograph concludes. "Simply put, there was no legal reason why the information could not have been shared."
The prevailing confusion was exacerbated by numerous complicating circumstances, the monograph explains. The Foreign Intelligence Surveillance Court was growing impatient with the FBI because of repeated errors in applications for surveillance. Justice Department officials were uncomfortable requesting intelligence surveillance of persons and facilities related to Osama bin Laden since there was already a criminal investigation against bin Laden underway, which normally would have preempted FISA surveillance. Officials were reluctant to turn to the FISA Court of Review for clarification of their concerns since one of the judges on the court had expressed doubts about the constitutionality of FISA in the first place. And so on. Although not mentioned in the monograph, it probably didn't help that public interest critics in the 1990s (myself included) were accusing the FISA Court of serving as a "rubber stamp" and indiscriminately approving requests for intelligence surveillance.
In the end, the monograph implicitly suggests that if the law was not the problem, then changing the law may not be the solution. The document, which had been classified Secret, was released with some small though questionable redactions. See "Legal Barriers to Information Sharing: The Erection of a Wall Between Intelligence and Law Enforcement Investigations," 9/11 Commission Staff Monograph by Barbara A. Grewe, Senior Counsel for Special Projects, August 20, 2004:
2008 DNI BRIEFING: QUESTIONS FOR THE RECORD
For the first time in several years, the Senate Select Committee on Intelligence has once again published unclassified responses from the Director of National Intelligence to questions for the record arising from the DNI's annual threat briefing to Congress. In the past, such formal responses to Congress have offered an unexpected wealth of information and updated intelligence.
Unfortunately, the latest answers were transmitted to the Committee in May 2008 and not published until May 2009, so to a large extent they are stale, have been overtaken by events, or are of limited historical interest. But in some cases, they present pithy statements of official policy or otherwise interesting interpretations of events:
"For a number of reasons, we believe China poses a significantly greater foreign intelligence threat today than it did during most of the cold war era."
"The Intelligence Community plays a crucial role in the protection of U.S. persons and national interests from emerging or re-emerging disease outbreaks. The IC provides earliest possible warning... using both clandestine collection and open source collection of foreign print and electronic media."
ENERGY SECRETARY CHU EMBRACES FOIA POLICY
The controversial idea of the "unitary executive" which holds that all executive power is vested in the President of the United States may be a coherent legal theory. But in reality, things don't happen within the executive branch simply because the President commands them. In practice, what we have is a "fragmentary executive" the efficacy of which is entirely dependent on the competence and the good faith of thousands of officials who must consciously choose to implement the declared policies of the Administration.
With that in mind, it is noteworthy that the Secretary of Energy, Steven Chu, reiterated and endorsed the President's Freedom of Information Act policy in a memorandum to senior Energy Department officials this month.
"All DOE employees have the responsibility to ensure the success of the agency's FOIA program," Secretary Chu wrote. "We can no longer use competing agency priorities and insufficient technological support as a basis for not responding to requests expeditiously. DOE employees should no longer view FOIA as an additional duty. It is your responsibility to ensure that FOIA requests are responded to in a timely manner."
"I want to make it clear that DOE will adhere to the President's and Attorney General's guidance," Secretary Chu concluded. See "Freedom of Information Act," memorandum for heads of departmental elements from Energy Secretary Steven Chu, June 5, 2009 (thanks to nukewatch.org):
******************************
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html
To UNSUBSCRIBE, go to:
http://www.fas.org/sgp/news/secrecy/unsubscribe.html
OR email your request to saftergood@fas.org
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html
Secrecy News Blog: http://www.fas.org/blog/secrecy/
2010 INTELLIGENCE AUTHORIZATION PENDING
Last month the Director of National Intelligence transmitted to Congress the Obama Administration's proposed language for next year's Intelligence Authorization Act. This week, the Administration forwarded several additional proposals. To its credit, the Senate Intelligence Committee has made this material available for public review on its web site.
Unsurprisingly, the proposed language would generally tend to expand intelligence agency authority while relaxing existing controls.
For example, the draft bill would grant the DNI a new exemption under the Freedom of Information Act for "operational files." Under this provision, if an intelligence agency that has its own operational file exemption transfers an operational file to the ODNI, the transferred information would retain its exempt status. (Normally, operational file information that is disseminated beyond the originating agency would lose its exemption from review under FOIA.)
In order to preserve the security of intelligence sources and methods and to promote information sharing, DNI Blair testified last month, "It is imperative that those [operational] files are accorded the same protections at the ODNI as they are accorded at the CIA [for example]."
Recent experience suggests otherwise, however. In 2005, FAS sought certain unclassified budget records from the National Reconnaissance Office, which the NRO denied because it said they were "operational files." We challenged that position in a FOIA lawsuit and a court ruled that the NRO's claim to an operational file exemption was not valid due in part to the fact that the document had been disseminated outside of the agency to the ODNI. More than a hundred partially redacted pages were found to be releasable.
At least a few lessons emerge from this episode: First, it appears that intelligence agencies have a tendency to invoke the operational files exemption more broadly than is justified, in an attempt to exclude releasable records from processing under the FOIA. Second, the loss of the NRO's operational file exemption in this case had no adverse effect on information sharing within the intelligence community. The NRO did not and could not have stopped sharing its budget documents with the ODNI. Third, the processing of these records under FOIA did not result in any uncontrolled release of classified information or of sensitive intelligence sources and methods. It just didn't.
Aside from the operational files exemption, the Administration's draft intelligence authorization bill also would exempt the ODNI from the open meeting requirements of the Federal Advisory Committee Act. It would cancel several existing reporting requirements. And so forth.
Here are a few hypothetical secrecy reform provisions that were not included in the Administration's draft bill:
CONGRESSIONAL ACTION ON SECRECY
The Senate on June 17 passed a bill sponsored by Senators Joseph Lieberman and Lindsey Graham that would exempt from the Freedom of Information Act certain photographs documenting the abuse of detainees held in U.S. custody. Senator Graham said that if the bill was not enacted into law, the Obama Administration had assured him it would classify the photos to prevent their release. "Rahm Emanuel has indicated to me that the President is committed to not ever letting these photos see the light of day," he said.
Strictly speaking, however, classification alone is not sufficient to exempt any such record from the FOIA. It must also be "properly classified," and that is a determination that is to be made by a court of law.
Senate Jay Rockefeller introduced a bill to limit the abuse of the "sensitive security information" (SSI) marking to withhold certain health and safety information from the public. "When an industrial emergency happens and threatens the lives of residents, workers and first responders, I absolutely believe the public has the right to receive important information about what it means for them and their health," he said. "Period."
Strictly speaking, again, the bill does not modify the definition of "sensitive security information" nor does it even place public health and safety considerations on an equal footing with security. Rather, it simply prohibits the deliberate, witting abuse of the SSI control marking.
The Senate Judiciary Committee again postponed its consideration of the State Secrets Protection Act (S.417) that would limit the ability of the executive branch to terminate litigation by invoking the privilege. Senator Orrin Hatch outlined his opposition to the bill in a floor statement last week. "Unless serious changes are made to this legislation and the amendments offered by myself and my Republican colleagues are adopted, I cannot in good conscience vote this bill out of committee," he warned on June 10.
The U.S. Air Force last month issued revised doctrine on "nuclear operations," incorporating the conclusions of the 2001 Nuclear Posture Review. But it is nearly obsolete upon release, since a new Nuclear Posture Review that will presumably lead to a revised policy is already underway. The new Air Force doctrine may be of interest nevertheless, since it presents an Air Force perspective on enduring issues of nuclear deterrence and nuclear command and control in easily understandable, mostly jargon-free terms. See "Nuclear Operations," Air Force Doctrine Document 2-12, May 7, 2009:
The text of a proposed agreement between the United States and the United Arab Emirates concerning cooperation in the peaceful uses of nuclear energy was transmitted by the White House to Congress last month, along with assorted supporting materials.
******************************
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html
To UNSUBSCRIBE, go to:
http://www.fas.org/sgp/news/secrecy/unsubscribe.html
OR email your request to saftergood@fas.org
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html
Secrecy News Blog: http://www.fas.org/blog/secrecy/
JUDGE SOTOMAYOR: A CRS ANALYSIS OF SELECTED OPINIONS
More than anything else, Judge Sonia Sotomayor is a judicial conservative who has hewed closely to established precedent, according to a new analysis by the Congressional Research Service of appellate court decisions authored by President Obama's nominee to the Supreme Court.
"Perhaps the most consistent characteristic of Judge Sotomayor's approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents," the 59-page CRS report stated.
In several important areas, however, the Judge's conception of the law remains opaque. For example, "An examination of Judge Sotomayor's opinions provides little guidance as to her judicial philosophy regarding executive authority in the realm of national security," the report said.
Judge Sotomayor authored two opinions involving the Freedom of Information Act. But "because the opinions are few and relied on relevant Supreme Court precedent, it is difficult to draw conclusions from them regarding her overall approach to FOIA or to related matters such as individual privacy or transparency in government," the CRS concluded.
See "Judge Sonia Sotomayor: Analysis of Selected Opinions," June 19, 2009:
Other noteworthy new CRS reports obtained by Secrecy News include the following:
"Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009," updated June 5, 2009:
"Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress," June 22, 2009:
"Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs," June 9, 2009:
"Homeland Security Department: FY2010 Request for Appropriations," June 15, 2009:
"Iran's 2009 Presidential Elections," June 22, 2009:
PUBLIC INPUT SOUGHT ON CLASSIFICATION REFORM
At the request of the National Security Advisor, a public meeting has been scheduled for July 8 to solicit public comments and recommendations concerning proposed revisions to executive branch classification and declassification policies. The meeting was announced in a June 23 Federal Register notice:
The Public Interest Declassification Board, which is hosting the July 8 meeting, will also launch a new blog next week to solicit public recommendations online. The blog will sequentially consider four areas: declassification policy, creation of a National Declassification Center, classification policy, and technology challenges and opportunities. Discussion of each topic will continue for three days, before moving to the next topic.
Meanwhile, an experimental and somewhat erratic White House process for gathering public input on transparency and openness has entered its third phase, intended to "craft constructive proposals" for advancing open government. See:
2006 SATELLITE FAILURE REMAINS A MYSTERY, NRO SAYS
In February 2008, the U.S. fired a missile at an inoperable U.S. intelligence satellite that had failed shortly after launch in December 2006. The satellite was destroyed reportedly in order to prevent an intact reentry of its toxic hydrazine fuel tank. But do we know why or how it failed in the first place?
"No," the director of the National Reconnaissance Office told Congress last year, in newly disclosed responses to questions for the record.
"After an exhaustive formal failure investigation, and three different independent review team investigations, the cause of the failure and what failed was not determined," said Scott Large, then-director of the NRO. "Our exhaustive analysis of the spacecraft design and test program did not identify the root cause of the failure," Mr. Large said.
His remarks appeared in the record of a March 5, 2008 hearing before the House Armed Services Committee that was published this month. See "Budget Request and Status of Space Activities":
"The era of Acquisition Reform is over," Mr. Large also told Congress. "It has left the NRO in a fragile state with a poor history of performance."
On June 12, Secretary of Defense Robert Gates, with concurrence of the DNI, appointed retired Air Force Gen. Bruce Carlson as the 17th director of the National Reconnaissance Office.
A new U.S. Marine Corps Order establishes Corps policy governing the disclosure of U.S. classified military information and controlled unclassified information to foreign governments. See "Disclosure of Military Information to Foreign Governments and Interests," MCO 5510.20A, May 15, 2009:
The Joint Chiefs of Staff issued new doctrinal guidance on combating weapons of mass destruction, including the three pillars of nonproliferation, counterproliferations, and WMD consequence management. See "Combating Weapons of Mass Destruction," Joint Publication 3-40, June 10, 2009:
The Merit Systems Protection Board upheld the firing of federal air marshal Robert MacLean for allegedly disclosing "sensitive security information," even though the information in question had not been marked as "sensitive" at the time, reports Nick Schwellenbach of the Center for Public Integrity. But then the Board published its ruling online even though the document was marked "sensitive security information." No word yet on whether the Board will fire itself. See "Transparency: A Shrill Message for Whistleblowers," June 25:
******************************
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html
To UNSUBSCRIBE, go to:
http://www.fas.org/sgp/news/secrecy/unsubscribe.html
OR email your request to saftergood@fas.org
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html
Secrecy News Blog: http://www.fas.org/blog/secrecy/
REDUCING GOVERNMENT SECRECY: FINDING WHAT WORKS
Although people have been complaining about abuse of the national security classification system for decades, such complaints have rarely been translated into real policy changes.
More than half a century ago, a Defense Department advisory committee warned that "Overclassification has reached serious proportions." But despite innumerable attempts at corrective action over the years by official commissions, legislators, public interest groups and others, similar or identical complaints echo today. What is even more interesting and instructive, however, is that a few of those attempts did not fail. Instead, they led to specific, identifiable reductions in official secrecy, at least on a limited scale.
For example, the Interagency Security Classification Appeals Panel (ISCAP) that was created in 1995 has consistently overturned the classification of information in the majority of documents presented for its review. And the Fundamental Classification Policy Review that was performed by the Department of Energy in 1995 eliminated dozens of obsolete classification categories following a detailed review of agency classification guides. These and just a few other exceptional efforts demonstrate that even deeply entrenched secrecy practices can be overcome under certain conditions.
In an effort to identify some of those conditions, I wrote a paper entitled "Reducing Government Secrecy: Finding What Works." It has just been published in the Yale Law and Policy Review, volume 27, no. 2, Spring 2009, and is available here:
Among other things, the experience of the ISCAP underscores the importance of extending declassification authority beyond the agency that imposed the classification in the first place. It would be useless to restore "the presumption against classification" in cases of "significant doubt," as President Obama suggested on May 29, if that presumption applied only when such doubt arose in the mind of the classifier. But if classification were to be overruled by doubt in the minds of other persons -- ISOO overseers, Inspector General auditors, judges in FOIA proceedings, and others -- significant changes would be enabled.
However, systemic classification reform simply will not happen without careful independent review of agency classification guides, which specify exactly what information is to be classified. The DoE Fundamental Classification Policy Review proves that such a review, including public participation and input, is both possible and highly effective. It needs to be replicated at other classifying agencies.
The White House has announced an online process for receiving public comments and recommendations for changes to classification and declassification policies. Discussion of declassification policy begins today here:
HOUSE REPORT ON INTELLIGENCE AUTHORIZATION 2010
The House Intelligence Committee last week filed its report on the FY 2010 intelligence authorization act, including many interesting and potentially important intelligence policy provisions.
Perhaps the most significant measure is the proposed creation of a statutory inspector general for the intelligence community. Other steps include a requirement to report on the number of Federal Government employees who hold security clearances (remarkably, a number that is not readily available today, even within the government); cautious endorsement of a limited role for the Government Accountability Office in intelligence oversight (a move favored by FAS); expanded review and notification requirements concerning covert action; a proposed study on the possibility of revoking the pensions of persons who commit unauthorized disclosures of classified information; and quite a bit more.
See "Intelligence Authorization Act for Fiscal Year 2010," House Permanent Select Committee on Intelligence, H.Rept. 111-186, June 26, 2009:
Bill Leonard, the esteemed former director of the Information Security Oversight Office and the principal overseer of the government secrecy system, now has his own blog where readers may look for his views and his insights on secrecy policy as the process of classification reform gets underway in earnest.
The House Judiciary Committee rebuffed a Republican proposal for a "resolution of inquiry" to require the Administration to produce documents concerning the use of Miranda warnings given to detainees captured in Afghanistan. The Committee's adverse report, dated June 26, is available here:
The Defense Department has issued a newly updated policy statement on reporting "questionable" intelligence activities. "It is DoD policy that senior leaders and policymakers within the Government be made aware of events that may erode the public trust in the conduct of DoD intelligence operations," the June 17, 2009 memorandum states.
Some such questionable activities are to be reported to the Intelligence Oversight Board, a component of the President's Intelligence Advisory Board. However, the efficacy of any such reporting is limited by the fact that that Board currently has no sitting members. ("White House Intel Advisory Board Has No Members," Secrecy News, June 15, 2009).
******************************
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html
To UNSUBSCRIBE, go to:
http://www.fas.org/sgp/news/secrecy/unsubscribe.html
OR email your request to saftergood@fas.org
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html