Posts from October, 2006

An Updated Lexicon of Government Information Policy

The specialized language of government information policy is itself a reflection of the intricacies and convolutions of that policy.

A newly updated and substantially expanded lexicon (pdf) of information-related terms, prepared by Susan L. Maret, provides a valuable map to the language and the terrain of U.S. government information policy.

Hundreds of entries, ranging from the well-known or obvious (“classified”) to the obscure and recondite (e.g., EPITS), are presented with lucid definitions and pointers to official source documents.

“These terms represent a virtual seed catalog to federal informationally-driven procedures, policies, and practices involving, among other matters, the information life cycle, record keeping, ownership over information, collection and analysis of intelligence information, security classification categories and markings, censorship, citizen right-to-know, deception, propaganda, secrecy, technology, surveillance, threat, and warfare,” Dr. Maret writes.

“The terms reported here — which have often been interpreted widely from one federal agency to another — play a significant role in shaping social and political reality, and furthering government policy.”

See “On Their Own Terms: A Lexicon with an Emphasis on Information-Related Terms Produced by the U.S. Federal Government” by Susan Maret, Ph.D., updated October 2006. (An MS Word version is here.)

GAO on Security Clearances, NRC on Safeguards Info

Processing of applications for security clearances by the Department of Defense continues to fall far behind official targets for improvement, according to the Government Accountability Office.

“Our independent analysis of timeliness data showed that industry personnel contracted to work for the federal government waited more than one year on average to receive top secret clearances,” a new GAO study said.

Among other things, the latest study provides a useful snapshot of the security clearance apparatus. It reports, for example, that approximately 2.5 million persons hold security clearances authorized by the Department of Defense.

See “DOD Personnel Clearances: Additional OMB Actions Are Needed to Improve the Security Clearance Process” (pdf) [GAO-06-1070], September 2006.

The Nuclear Regulatory Commission is proposing a new rule on protection of “Safeguards Information” (SGI).

“SGI is a special category of sensitive unclassified information to be protected from unauthorized disclosure under Section 147 of the [Atomic Energy Act].”

“Although SGI is considered to be sensitive unclassified information, it is handled and protected more like Classified National Security Information than like other sensitive unclassified information (e.g., privacy and proprietary information).” Access to SGI, for example, requires a validated “need to know.”

The proposed NRC rule, issued for public comment, was published in the Federal Register today.

CRS on the North Korean Nuclear Test

A new report (pdf) from the Congressional Research Service synthesizes what is known, believed and speculated about the recent North Korean nuclear explosive test, and sketches out the options for U.S. policy.

“The most fundamental U.S. goals of the confrontation with North Korea are to prevent the proliferation of weapons of mass destruction and to prevent an attack — either nuclear or conventional — on the United States or on its allies in the region,” the report says.

“The options available to U.S. policymakers to pursue these goals include the acceptance of North Korea as a nuclear power, bilateral or multilateral negotiations, heightened legal and economic pressure on North Korea, adoption of a regime change policy through non-military means, military action or threats, and withdrawal from the conflict.”

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

See “North Korea’s Nuclear Test: Motivations, Implications, and U.S. Options,” October 24, 2006.

DoD Contractor Improperly Blocked Release of Info

In an unusual investigation of improper secrecy involving unclassified information, an Inspector General report last week found that a Defense Department contractor marked records as “proprietary data,” thereby restricting their dissemination, even though the records did not qualify as proprietary.

Kellogg, Brown and Root Services, Inc. (KBR), a component of Halliburton, “routinely marks almost all of the information it provides to the government as KBR proprietary data,” the Special Inspector General for Iraq Reconstruction found (pdf).

This is not consistent with Federal Acquisition Regulations (FAR), the IG said.

“The routine use of proprietary markings when the data marked is not internal contractor information… is an abuse of FAR procedures [and] inhibits transparency of government activities and the use of taxpayer funds…,” the Inspector General reported.

“The result is that information normally releasable to the public must be protected from public release…”

“In effect, KBR has turned FAR provisions designed to protect truly proprietary information … into a mechanism to prevent the government from releasing normally transparent information, thus potentially hindering competition and oversight,” the Inspector General concluded.

See “Interim Audit Report on Inappropriate Use of Proprietary Data Markings by the Logistics Civil Augmentation Program Contractor,” Office of the Special Inspector General for Iraq Reconstruction, October 26, 2006.

Halliburton’s Kellogg Brown & Root unit won a $17 billion contract in 2001 to provide services to the U.S. Army worldwide that includes over $15.4 billion for Iraq work, noted Tony Capaccio in a report for Bloomberg News. “While KBR has been criticized for its accounting practices, bills and estimates of future costs, this audit is the first to cite it for restricting information,” he wrote.

While national security classification procedures are governed by certain rules and procedures, including a degree of external oversight, the same is not consistently true of the dozens of control markings (such as “proprietary data” or “for official use only”) that are increasingly imposed on unclassified information.

So, for example, there are well-defined procedures for declassification of classified information, but there are no such procedures for lifting controls on many varieties of “sensitive but unclassified” information.

And while the Information Security Oversight Office is responsible for oversight of classification and declassification activity, no one is similarly responsible for monitoring restrictions on unclassified information that is withheld from the public. It would be surprising if such restrictions were not abused, since they can serve as a shield against oversight and accountability.

The new Inspector General report suggests that this is a function that might regularly be assumed by agency Inspectors General.

A House Government Reform Subcommittee held a hearing last March on the proliferation of controls on unclassified information and their consequences. The record of that hearing has recently been published.

See “Drowning in a Sea of Faux Secrets: Policies on Handling of Classified and Sensitive Information,” House Committee on Government Reform, March 14, 2006.

Public Interest Declassification Board Stalls

Confronted for the first time by a congressional request to review the classification of two congressional reports, the new Public Interest Declassification Board (PIDB) has been stymied by doubts over its own authority to proceed.

The PIDB was formally created by statute in 2000 to serve as an advisory body on declassification priorities and policies. Its controlling statute was modified in the intelligence reform legislation of 2004, when its members began to be named, but it first received funding in fiscal year 2006.

In September, Senator Ron Wyden (D-OR) and other members of the Senate Intelligence Committee including its chairman Sen. Pat Roberts (R-KS), asked the Board to review the controversial classification of portions of two committee reports on pre-war Iraq intelligence, contending that those documents were overclassified. It was the Board’s first such tasking.

Under the terms of the amended statute, the Board now says it cannot act on the congressional request without specific Presidential approval.

“The statute under which we operate provides that [President Bush] must request the board undertake such a review before it can proceed,” wrote L. Britt Snider, chairman of the Public Interest Declassification Board, in a letter to Sen. Wyden.

In effect, it appears, the Bush Administration must authorize the Board’s investigation of whether the Bush Administration overclassified the reports in question.

See “Anti-secrecy panel called ‘toothless’,” by Shaun Waterman, United Press International, October 30.

Some aspects of the dilemma were reported by Tim Starks in Congressional Quarterly on October 20, and elaborated by Nick Schwellenbach of the Project on Government Oversight in “Public Interest Declassification Board: Who’s the Boss?”.

Secrecy vs. Congressional Oversight

Keeping secrets from the press and the public may be frustrating and occasionally illegal. But executive branch secrecy directed at Congress is actually subversive to the extent that it undermines the performance of legislative oversight.

Such secrecy was on vivid display at an April 6, 2006 hearing of the House Judiciary Committee on the Department of Justice, the record of which has just been published.

Attorney General Alberto R. Gonzales, the sole witness, consistently evaded or deflected a wide range of basic policy questions.

He was so reluctant to give definitive responses to congressional questions that at one point he refused to endorse the well-established requirements of existing law.

Would the Bush Administration ever conduct “purely domestic warrantless surveillance between two Americans?” Rep. Adam Schiff (D-CA) wanted to know.

“I’m not going to rule it out,” the Attorney General replied, unintentionally making headlines the next day.

The answers to many of the Committee’s questions are classified, the Attorney General repeatedly stated, and could not be presented. Eventually, even Republican supporters of Bush Administration policies began to run out of patience.

“Mr. Attorney General, how can we discharge our oversight responsibilities if every time we ask a pointed question we are told that the answer is classified?” said House Judiciary Committee Chairman Rep. F. James Sensenbrenner Jr. (R-WI).

“We need to have answers,” he said. “And we’re not getting them.”

“I am really concerned that the Judiciary Committee has been kind of put in the trash heap,” Chairman Sensenbrenner said at the conclusion of the hearing.

Aside from classification restrictions, AG Gonzales displayed a surprisingly weak grasp of many of the issues raised by the Committee; he said “I don’t know” at least twenty-one times. He also declined to answer questions that touched on internal Administration deliberations. And he adhered to a view that classified intelligence matters are strictly the domain of the congressional Intelligence Committees, not the Judiciary Committees.

The newly published hearing record includes (in the PDF version) nearly 100 pages of somewhat more substantive follow-up questions and answers for the record, transmitted in September 2006. Topics included domestic surveillance, the President’s classification and declassification authority, the possible use of military force against U.S. persons suspected of being terrorists, the use of Presidential signing statements, and so forth. Most of this material seems to restate previously articulated positions.

The hearing transcript features some sublimely obtuse moments.

“Do you have the highest security clearance that is available in the United States Government?” asked Rep. Anthony Weiner (D-NY).

“As far as I know, yes,” the Attorney General said.

See “United States Department of Justice,” hearing before the House Judiciary Committee, April 6, 2006.

“We have legitimate oversight questions, and we’re told it’s classified, so we can’t get to the bottom of this,” a frustrated Rep. Sensenbrenner said.

“Maybe there ought to be some declassification,” he mused.

Sequestered Science

Secrecy in science is the subject of a series of papers in the latest issue of the Duke University Law School journal Law and Contemporary Problems. The authors consider the consequences of secret science and “propose solutions to help balance the costs and benefits of such secrecy.”

See a descriptive news release here.

The full text of the special issue on “Sequestered Science,” edited by David Michaels and Neil Vidmar, is here.

CRS on Conventional Arms Transfers, and More

The Congressional Research Service has produced its latest annual report on U.S. arms sales abroad (pdf). The CRS report, authored by Richard F. Grimmett, has become a standard reference in the field since it is based on closely held official data.

“This report is prepared annually to provide Congress with official, unclassified, quantitative data on conventional arms transfers to developing nations by the United States and foreign countries for the preceding eight calendar years for use in its various policy oversight functions.”

Like other CRS products, this report is not made directly available to the public by CRS. A copy was obtained by Secrecy News.

See “Conventional Arms Transfers to Developing Nations, 1998-2005,” October 23, 2006.

Further information and analysis are available from the FAS Arms Sales Monitoring Project.

Among other noteworthy new products of the Congressional Research Service are the following (all pdf).

“Weapons of Mass Destruction: Trade Between North Korea and Pakistan,”
updated October 11, 2006.

“Extradition Between the United States and Great Britain: The 2003 Treaty,” updated October 10, 2006.

“Russian Political, Economic, and Security Issues and U.S. Interests,” updated October 19, 2006.

“The National Institutes of Health (NIH): Organization, Funding, and Congressional Issues,” October 19, 2006.

“Journalists’ Privilege: Overview of the Law and 109th Congress Legislation,”
updated October 3, 2006.