Posts from September, 2006

Reid Proposes Further Declass of Senate Intel Report

Sen. Harry Reid (D-NV), the Senate Minority Leader, proposed an amendment that would require the declassification of certain classified portions of a Senate Intelligence Committee report regarding pre-war intelligence on Iraq.

Sen. Ron Wyden and Sen. Carl Levin charged last week that portions of the controversial report had been withheld from public disclosure in order to evade accountability or to conceal “highly offensive” information unrelated to national security.

See the text of Sen. Reid’s proposed amendment to the pending maritime security bill here.

Selected CRS Reports

Some notable recent reports of the Congressional Research Service obtained by Secrecy News that are not otherwise readily available to the public include the following (all pdf).

“Federal and State Quarantine and Isolation Authority,”
updated August 16, 2006.

“Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications,” updated August 11, 2006.

“Cuba: Issues for the 109th Congress,” updated August 8, 2006.

“Japan-U.S. Relations: Issues for Congress,” updated August 7, 2006.

“Industrial Competitiveness and Technological Advancement: Debate Over Government Policy,” updated August 3, 2006.

“Technology Transfer: Use of Federally Funded Research and Development,” updated August 3, 2006.

“The Committee on Foreign Investment in the United States (CFIUS),” updated July 28, 2006.

Sea Shadow, Hughes Mining Barge Available for Display

The U.S. Navy announced today that the “Sea Shadow” (IX-529), an experimental naval craft, and the Hughes Mining Barge (HMB-1), which was originally developed as part of the CIA’s 1974 Project Jennifer to help raise a sunken Soviet submarine, are available for donation to a suitable museum or organization.

“Ex-SEA SHADOW is contained inside HMB-1…. The donee may display the two vessels as currently configured as a single unit, or display them individually,” according to a notice in the Federal Register.

“If the Navy receives no interest by an eligible recipient within two years, the Navy reserves the right to remove the vessels from donation consideration and proceed with their disposal.”

See “Notice of Availability for Donation of the Test Craft Ex-SEA SHADOW (IX-529) and Hughes Mining Barge (HMB-1),” Federal Register, September 14.

Iraq Intelligence Reports Are Overclassified, Senators Say

Two partially declassified reports issued by the Senate Intelligence Committee last week that were critical of pre-war intelligence on Iraq remain significantly overclassified, according to Senator Ron Wyden (D-OR), who said he would seek further disclosure.

Furthermore, portions of the two Intelligence Committee reports that were withheld conceal “certain highly offensive activities” and “deeply disturbing information,” said Sen. Carl Levin (D-Mich.).

“I am very troubled that some information in these reports has been classified even though its release would have no impact on national security,” Sen. Wyden said.

“I am particularly concerned it appears that information may have been classified to shield individuals from accountability,” he said in a September 8 news release.

“Portions of the report which the intelligence community leaders have determined to keep from public view provide some of the most damaging evidence of this administration’s falsehoods and distortions,” said Senator Levin in a September 8 floor statement.

“What remains classified, and therefore covered up, includes deeply disturbing information,” he said.

“Much of the information redacted from the public report does not jeopardize any intelligence source or method but serves effectively to cover up certain highly offensive activities.”

“Even the partially released picture is plenty bleak, about the administration’s use of falsehoods and distortions to build public support for the war. But the public is entitled to the full picture. Unless this report is further declassified, they won’t get it,” Sen. Levin said.

Senator Wyden announced that he would ask the Public Interest Declassification Board, an advisory board originally created by statute in 2000, to review the two reports and to render a judgment as to whether they were properly declassified.

This would be the first time that a Member of Congress has tasked the Board to perform such a declassification oversight function.

The two Senate Intelligence Committee reports, released last week in redacted form, are:

“The Use by the Intelligence Community of Information Provided by the Iraqi National Congress” (211 pages, 9 MB PDF file).

“Postwar Findings About Iraq’s WMD Programs and Links to Terrorism and How They Compare with Prewar Assessments” (151 pages, 7 MB PDF file).

DOE Reports on Inadvertent Disclosures of Classified Info

The Department of Energy has issued its twenty-second report to Congress (pdf) on inadvertent disclosures of classified nuclear weapons-related information in declassified files at the National Archives.

The new report said that reviewers had found an additional 736 pages containing such classified information within the more than 465,000 pages of records that they recently reviewed. The classified materials were removed from public access.

A copy of the new report, dated August 2006 but released in declassified form in September, is available here.

The DOE effort to review previously declassified records for inadvertent disclosures began in 1999 and has nearly been completed. DOE reviewers at the Archives will soon turn their attention to the proper processing of records that are currently undergoing or scheduled for declassification.

The National Security Archive at George Washington University recently obtained cost data on the Department of Energy program to review declassified records at the National Archives.

“So far, according to DOE, the review of the 204 million pages [the total reviewed since 1999] has cost nearly $22 million,” reported William Burr of the National Security Archive.

“While the average cost of the review was about 9 cents per page, the average cost of locating the suspect information was high. The cost of finding one of the 2,766 documents [containing classified data] was almost $8,000, while the cost of finding one of the withdrawn [classified] pages [that had been inadvertently disclosed] was around $3,300,” he wrote.

“The effort to retrieve [classified] ‘RD’ nuclear weapons design information is understandable (although whether adversaries would actually have seized opportunities to find the needle in the archival haystack is a problem worth considering).”

“It would have been far better, however, if DOE had undertaken its review with better guidelines enabling it to focus on protecting truly sensitive information instead of impounding documents that may have little or no sensitivity,” Burr wrote.

See “How Many and Where Were the Nukes?” edited by Dr. William Burr, National Security Archive, August 18, 2006.

DoD Unveils Detainee Interrogation Policy

The Department of Defense, having concluded that its interests would be best served by public disclosure, released a new directive (pdf) on policy towards enemy detainees and a new Army Field Manual (pdf) on detainee interrogation.

The new detainee policy explicitly bars “cruel, inhumane and degrading” treatment of detainees who are in Defense Department custody and defines a minimum standard of humane care. The new Field Manual identifies 19 interrogation techniques that may be used, three of which are new, and prohibits others.

Army Gen. John Kimmons said that the Pentagon weighed the costs and benefits of classifying portions of the new policy documents, and decided in favor of full public disclosure.

“We initially considered taking the additional techniques I described, the three new ones, and putting them into a classified appendix of some sort to keep them out of the hands of the enemy, who regularly reads our field manuals as a matter of course,” he said at a September 6 Pentagon press briefing.

“We weighed that against the needs for transparency and working openly with our coalition partners who don’t have access to all of our classified publications….”

“We also felt that even classified techniques, once you use them on the battlefield over time, become increasingly known to your enemies, some of whom are going to be released in due course. And so on balance, in consultation with our combatant commanders, we decided to go this [unclassified] route. We’re very comfortable with it; so are our combatant commanders,” Gen. Kimmons said.

The new Army Field Manual is still marked “For Official Use Only” (FOUO). But “in the interest of full transparency” the Army released it anyway.

“The ‘FOUO’ markings are no longer operative,” an Army spokesman said.

See “Human Intelligence Collector Operations,” Field Manual FM 2-22.3, September 2006 (11 MB PDF file).

See also “Department of Defense Detainee Program,” DoD Directive 2310.01E, September 5, 2006.

The Office of the Director of National Intelligence likewise found it advantageous and appropriate to disclose significant new information about 14 “high value detainees” that were formally transferred from the custody of the Central Intelligence Agency to the Department of Defense.

See “Summary of the High Value Terrorist Detainee Program” (pdf), ODNI, September 6.

See also ODNI “biographies” of the 14 detainees.

The occasional triumphs and frequent defects of media coverage of the detention and treatment of enemy combatants were reviewed at length by Eric Umansky in “Failures of Imagination,” Columbia Journalism Review, September/October 2006.

2007 Intelligence Authorization Bill Stalled

For the second year in a row, the U.S. Senate may fail to enact an intelligence authorization bill, effectively neutering the intelligence oversight process.

“The failure of the Senate to pass intelligence authorization for 2 years threatens to erode the ability of the Intelligence Committee to carry out the mission assigned to it by the Senate,” said Sen. Jay Rockefeller (D-WV), the ranking member of the Committee, in a floor statement.

In an effort to compel Senate action on the intelligence bill, Sen. Rockefeller introduced an amendment that would strip out language in the Defense Appropriations bill that provides a nominal authorization for continuing intelligence activities.

See September 6 statements by Sen. Rockefeller and Sen. Dianne Feinstein here.

DHS Lists “Sensitive Security Information” Titles

In an attempt to limit unnecessary controls on unclassified information, Congress last year required the Department of Homeland Security to identify by title all DHS documents that were marked as “Sensitive Security Information” (SSI) that may not be publicly disclosed.

In response, the first DHS report to Congress (pdf) listed approximately one thousand titles that had been marked as SSI between October 1 and December 31, 2005.

A copy of that report has just been released with minor redactions in response to a Freedom of Information Act request from the Federation of American Scientists.

See “Department of Homeland Security Documents Designated in Their Entirety as Sensitive Security Information (SSI), October 1 Thru December 31, 2005″ (3.5 MB PDF).

Odds and Ends

The National Archives described progress on a new National Declassification Initiative that has the potential to streamline declassification of historical records by eliminating multiple agency reviews of the same document.

Two more Army Field Manuals of specialized interest were published this week:

“Tactics, Techniques, and Procedures (TTPs) for the Joint Network Node-Network (JNN-N)” (pdf), Field Manual-Interim FMI 6-02.60, September 2006.

“Army Electromagnetic Spectrum Management Operations” (pdf), Field Manual-Interim FMI 6-02.70, September 2006.

Sen. Jon Kyl introduced a bill that would expand the definition of illegal material support to terrorists, modify the Classified Information Procedures Act, and penalize terrorism-related hoaxes. See his introduction of the “Terrorism Prevention Act of 2006″ (S. 3848).

The record of the March 31, 2006 Senate Judiciary Committee hearing on a proposal by Sen. Russ Feingold to censure the President has recently been published.

Louis Fisher on the “Sole Organ” Doctrine

“The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations,” according to a statement made in 1800 by John Marshall.

This so-called “sole organ” doctrine has frequently been invoked by the executive branch “to define presidential power broadly in foreign relations and national security, including assertions of an inherent executive power that is not subject to legislative or judicial constraints,” writes constitutional scholar Louis Fisher in a new Law Library of Congress study (pdf).

“When read in context, however, Marshall’s speech does not support an independent, extra-constitutional or exclusive power of the President in foreign relations.”

“The concept of an Executive having sole power over foreign relations borrows from other sources, including the British model of a royal prerogative,” Fisher concludes.

Fisher’s analysis of the sole organ doctrine is the first in a series of new studies of inherent presidential power prepared at the request of Senator Robert Byrd (D-WV). A copy was obtained by Secrecy News.

See “The ‘Sole Organ’ Doctrine” by Louis Fisher, Law Library of Congress, Studies on Presidential Power in Foreign Relations, Study No. 1, August 2006.