Posts from April, 2006

DoD Seeks New FOIA Exemption for Unclassified WMD Info

The Department of Defense is seeking a broad new exemption from the Freedom of Information Act for unclassified information relating to weapons of mass destruction.

According to the proposed legislation, “Examples of such information could include … formulas and design descriptions of lethal and incapacitating materials; maps, designs, security/emergency response plans, and vulnerability assessments for facilities containing weapons of mass destruction materials.”

The proposal is puzzling because most such information, including that which is not classified, is already exempt from the FOIA. Meanwhile, some related categories of information that are not exempt should arguably remain public.

The draft DoD language “is so broad as to potentially sweep everything related to any chemical facility into the exemption,” said Meredith Fuchs, general counsel at the National Security Archive. “There is nothing in here that explicitly protects the public’s need to know some things about these facilities, e.g. violations of the law, lack of required certifications or licenses.”

Furthermore, she said, “the lack of a temporal limit on the withholdability of the information, and the lack of any appeals mechanism, creates a potential black hole.”

She suggested that any such exemption should be more narrowly “focused on what they actually are trying to protect, which I think is vulnerability information DOD learns of regarding private facilities.”

The draft DoD FOIA exemption was first reported in “DOD Asks For New FOIA Exemption Covering WMD-Related Information” by Keith Costa, Inside the Pentagon, April 13.

GAO Views Sensitive But Unclassified Info

The challenges posed by the use of “sensitive but unclassified” control markings were examined in a comprehensive new report (pdf) from the Government Accountability Office.

“The agencies that GAO reviewed are using 56 different sensitive but unclassified designations (16 of which belong to one agency) to protect information that they deem critical to their missions — for example, sensitive law or drug enforcement information or controlled nuclear information.”

“For most designations there are no governmentwide policies or procedures that describe the basis on which an agency should assign a given designation and ensure that it will be used consistently from one agency to another. Without such policies, each agency determines what designations and associated policies to apply to the sensitive information it develops or shares. More than half the agencies reported challenges in sharing such information.”

See “Information Sharing: The Federal Government Needs to Establish Policies and Processes for Sharing Terrorism-Related and Sensitive but Unclassified Information,” March 2006 (1.8 MB PDF).

The Office of the Director of National Intelligence (ODNI) is currently coordinating an effort to standardize governmentwide procedures for the handling of “sensitive but unclassified” information.

But the ODNI rather impudently refused to cooperate with the GAO because “the review of intelligence activities is beyond the GAO’s purview,” according to Kathleen Turner of the ODNI Office of Legislative Affairs.

The Project on Government Oversight dissected the matter here. (Also flagged by Cryptome.)

See also “Report criticizes U.S. terror info sharing” by Shaun Waterman, United Press International, April 18.

The AIPAC Case: The Defense Strikes Back

Attorneys for two former officials of the American Israel Public Affairs Committee accused of mishandling classified information vigorously rebutted the latest prosecution arguments against their clients in an April 6 pleading (pdf).

“In the history of the Espionage Act, the government has never embarked on a prosecution like this one — of private citizens outside government, not accused of espionage, for receiving and transmitting oral information in the context of their jobs as foreign policy advocates protected by the First Amendment,” the defense argued.

The defense brief disputed the prosecution’s new claim that a 1940 case known as Gorin was a pertinent precedent to the current case. In that earlier case, the defendant was a foreign agent who paid his sources for access to restricted information. But unlike Gorin, the present defendants are not accused of being foreign agents, nor of bribing or coercing the disclosure of information.

See “Defendants’ Reply to Government’s Supplemental Response to Motion to Dismiss,” April 6, 2006 (1 MB PDF).

An earlier defense brief on related matters, dated March 31 and initially filed under seal, is now available here (2.2 MB PDF).

Recent news coverage of the case includes “Leak Flap Seen Aiding Lobbyists’ Case” by Marc Perelman, Forward, April 14.

Air Force Issues Doctrine on Homeland Operations

The U.S. Air Force has produced a new doctrinal document (pdf) that articulates its role in “homeland operations.”

“This document describes how our Air Force organizes and employs air and space power in operations in the homeland.”

“It focuses on how we support civilian agencies through the appropriate combatant commander in a variety of operations, such as neutralizing terrorist threats, responding to natural disasters, and supporting the traditional mission of homeland defense.”

See “Homeland Operations,” Air Force Doctrine Document AFDD 2-10, March 21, 2006.

Reverence for the Law, and Statutory Interpretation

The best way to ensure the perpetuation of democratic institutions in turbulent times, said Abraham Lincoln in an 1838 speech, is to cultivate a sense of reverence for the law.

“Let reverence for the laws be breathed by every American mother to the lisping babe that prattles on her lap — let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs; — let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.”

“And, in short, let it become the political religion of the nation,” said the 28 year old Lincoln.

A newly updated report (pdf) from the Congressional Research Service introduces lay readers to the principles of statutory interpretation used by the Supreme Court to interpret the law.

Some of these rules are commonsensical. Thus, ordinarily, “shall” is mandatory and “may” is permissive.

Others are less obvious but no less important. The principle of “constitutional avoidance,” for example, dictates that a statute should be read, “if fairly possible,” so as not to be found unconstitutional.

At Congressional direction, CRS does not make its products directly available to the American public. But a copy of this useful new CRS report was obtained by Secrecy News.

See “Statutory Interpretation: General Principles and Recent Trends,” updated March 30, 2006.

NARA Releases Second Memo on Document Reclassification

The National Archives and Records Administration (NARA) today released a second newly declassified Memorandum of Understanding (MOU) on the withdrawal of government records from its public collections.

National Archivist Allen Weinstein said that he discovered the existence of the second MOU (pdf), which was signed by the Central Intelligence Agency and NARA in October 2001, only last Thursday and that he immediately sought its declassification. Another MOU (pdf) on document withdrawal, signed by Air Force and NARA in March 2002, was released in declassified form last week.

Until its recent discovery by researcher Matthew Aid, with the support of the National Security Archive, the document withdrawal activity at the National Archives had been conducted secretly, as if it were some kind of covert action.

“It is in the interests of both the CIA and the National Archives and Records Administration to avoid the kind of public notice and researcher complaints that may arise from removing from the open shelves for extended periods of time records that had been public available,” the 2001 MOU stated.

The resulting firestorm of criticism that has been directed at the National Archives is “absolutely fair,” said Archivist Weinstein in a meeting with historians and public interest groups today.

He took responsibility for the affair (which originated prior to his appointment as Archivist). More significantly, he repudiated the underlying practice.

“There can never be a classified aspect to our mission,” Weinstein said. “Classified agreements are the antithesis of our reason for being.”

“If records must be removed for reasons of national security, the American people will always, at the very least, know when it occurs and how many records are affected.”

An audit of the document withdrawal program by the Information Security Oversight Office is expected to be released on April 26.

See this April 17 NARA news release, with links to the newly release MOU and related background material.

Beyond the unwarranted secrecy of the document withdrawal program, a deeper problem concerns official policy on classification of historical records.

Since many of the withdrawn documents are publicly accessible elsewhere, their withdrawal provides the public a rare opportunity to evaluate current classification policy as practiced by executive branch agencies. It is not a very satisfactory picture.

One publicly available document that was modified by the Central Intelligence Agency in a revealingly obtuse way was featured in a New York Times story yesterday.

See “Why the Secrecy? Only the Bureaucrats Know” by Scott Shane, New York Times, April 16 (free reg. req’d.).

DoE Intelligence Embraces Discredited Budget Secrecy Policy

The Department of Energy Office of Intelligence has reverted to a policy of budget secrecy that it rejected more than a decade ago.

For as long as anyone can remember, the small DOE intelligence unit always had an unclassified budget (around $40 million in recent years).

“The size of the DOE intelligence budget is not classified because it does not reveal the size or the components of the Department’s National Foreign Intelligence Program,” wrote John G. Keliher, then-Director of the DOE Office of Nonproliferation and National Security on June 24, 1994.

“The DOE intelligence budget does not disclose any classified information. National security is neither threatened nor damaged as a result of the UNCLASSIFIED intelligence budget released to the public,” Mr. Keliher wrote.

Interestingly, the other member of the U.S. intelligence community with an unclassified budget is the State Department’s Bureau of Intelligence and Research (INR).

It may be more than a coincidence that INR and DOE intelligence analysts also distinguished themselves by dissenting from prevailing government views on Iraq’s supposed “reconstitution” of its nuclear weapons program.

In 2004, the 9/11 Commission recommended that all U.S. intelligence agencies should do what INR and DOE Intelligence had long done, and disclose their annual budget totals.

“To combat the secrecy and complexity we have described, the overall amounts of money being appropriated for national intelligence and to its component agencies should no longer be kept secret,” the Commission wrote in its final report (p. 416).

Other agencies simply ignored the 9/11 Commission’s recommendation. But amazingly, DOE responded by doing the exact opposite of what the 9/11 Commission said was necessary.

Boldly striving for mediocrity, DOE began to classify its intelligence budget figure in Fiscal Year 2005.

A longstanding request from Secrecy News for an explanation of DOE’s retreat into the budget secrecy that it previously disavowed has gone unanswered.

Instead, DOE officials have sought to purge prior disclosures of intelligence budget information from the agency website. This material has been recovered here.

It hardly comes as a surprise that DOE intelligence is now facing a period of internal turmoil.

One possible outcome, “which the DOE Secretary reportedly has approved but not yet initiated, would be to integrate the DOE’s Office of Intelligence… and DOE’s CI [Counterintelligence] office under a newly created DOE intelligence agency,” according to a new Congressional Research Service report.

A copy of the CRS report was obtained by Secrecy News.

See “Intelligence Reform at the Department of Energy: Policy Issues and Organizational Alternatives” (pdf), April 10, 2006.

The DOE Office of Classification publishes a newsletter called “CommuniQue,” which presents instructional tips for classifiers and declassifiers and provides notification of new and forthcoming classification guides. The latest issue, dated February 2006, is available here (pdf).

The possible integration of DOE intelligence and counterintelligence was first reported by Bill Gertz in The Washington Times on February 21.

The Director of the DOE Office of Intelligence is Rolf Mowatt-Larssen.

House Intel Committee Urges New Action Against Leaks

Existing laws prohibiting unauthorized disclosures of classified information have not been effective, the House Intelligence Committee stated in a new report on the 2007 intelligence authorization act published today.

“Additional and more creative steps to deter unauthorized disclosures are warranted,” the report said.

Towards that end, the Committee asked the Director of National Intelligence to study the feasibility of revoking the pensions of those who commit unauthorized disclosures.

Furthermore, “the Committee has initiated a review of certain specific potential unauthorized disclosures of classified information at the request of the Speaker of the House.”

“That review primarily is concentrating on an investigation of four cases to develop a better understanding of the related facts and circumstances. The investigation is in turn expected to better enable the Committee to understand how and why unauthorized disclosures occur, and how the protection of classified information is perceived in practice.”

“By definition, no individual–whether a journalist, government official, or intelligence community employee–can or should singlehandedly presume to determine what information ‘deserves’ to be withheld from disclosure in order to protect national security, especially without full knowledge of the surrounding context,” the Committee stated.

In one startling passage, the Committee suggests that even the unauthorized receipt of classified information, and not merely its unauthorized disclosure, should be subject to legal penalties:

“The Committee’s work plan for this fiscal year includes reviewing all legal avenues to bring to justice those who violate the law, including those who knowingly receive, what is essentially, stolen classified information.”

It goes without saying that the President’s irregular treatment of classified information in the Libby case invites cynicism about the whole subject.

See the House Intelligence Committee report on the FY 2007 Intelligence Authorization Act.

In a minority statement at the end of the report, Democrats criticized the President’s warrantless surveillance program: “Allowing the NSA surveillance program to proceed without fully complying with the law threatens to undermine our entire Constitutional order–our system of checks and balances,” they said.

Committee Republicans, in response, rejected what they termed “false and reprehensible claims of improper or illegal activities.”

DCIA Goss Invokes State Secrets Privilege

Director of Central Intelligence Agency Porter J. Goss invoked the state secrets privilege last month to block litigation filed against the CIA and another U.S. Government agency.

The likely effect is to terminate the case, for reasons that DCIA Goss said cannot be explained on the public record.

“After deliberation and personal consideration, I have determined that the bases for my assertion of the state secrets privilege cannot be filed on the public court record, or in any sealed filing accessible to the plaintiffs or their attorneys, without revealing the very information that I seek to protect,” Director Goss stated in an unclassified March 16 Declaration (pdf).

Little is known about the case. Even the identity of one of the government agencies that is a defendant in the suit has been withheld from disclosure.

What is known is that last September, attorney Mark S. Zaid filed a lawsuit on behalf of an anonymous plaintiff, Jane Doe, and three minors, alleging violations of the Privacy Act, the Administrative Procedures Act, and the U.S. Constitution, in this country and abroad. See the severely redacted complaint (pdf).

The government defended its assertion of the state secrets privilege and moved for dismissal of the case in a March 29, 2006 memorandum of law (pdf).

“Use of the state secrets privilege in courts has grown significantly over the last twenty-five years,” wrote William G. Weaver and Robert M. Pallitto in a study of the privilege in Political Science Quarterly last year (“State Secrets and Executive Power,” PSQ, volume 120, no. 1, Spring 2005).

“Recent use of the state secrets privilege shows a tendency on the part of the executive branch to expand the privilege to cover a wide variety of contexts,” they found.

The Secret History of the JASONs

One of the lacunae in the history of defense policy and science advice to government concerns the role of the JASON advisory panel. A fascinating new book on the JASONs helps to fill in that mysterious gap.

Established in 1960, the JASONs first gained unwelcome public attention as the result of a reference in the leaked Pentagon Papers. They have only rarely since been heard from in public.

Their membership is not publicized. Their meetings are closed. The publications are mostly classified. Their impact is hard to assess.

Author Ann Finkbeiner interviewed 36 JASONs, “roughly half of the membership,” and gleaned more about their activities than has ever appeared on the public record before, beginning with a definitive account of the origin of the JASON name (it was coined by Mildred Goldberger, the wife of Murph Goldberger, who is a JASON founding member and a friend of Secrecy News).

In her engaging and highly readable book, Finkbeiner traces the work of the JASONs over four decades and introduces many of the group’s original, eccentric and hyper-intelligent members.

See “The JASONs: The Secret History of Science’s Postwar Elite” by Ann Finkbeiner, Viking, April 2006.

A selection of unclassified JASON reports may be found here.