Posts from December, 2006

Some 2006 Leftovers

The Department of Energy’s search for inadvertent disclosures of classified nuclear weapons information in declassified government files seems to have reached the point of diminishing returns. In its latest quarterly report to Congress (pdf), DOE noted that it had examined 719,040 pages of declassified public records at the National Archives and found 38 pages containing nuclear information that it said should not have been disclosed. See the Twenty-Third Report on Inadvertent Disclosures of Restricted Data and Formerly Restricted Data, November 2006.

An investigation by the Inspector General of the National Archives (large pdf) “substantiated that [former National Security Adviser Samuel R.] Berger unlawfully removed and retained classified documents” from the Archives in 2003. The 121 page report on the Berger investigation, redacted to remove classified and other exempt information, is now posted here.

Most government records are ineffably boring to anyone who doesn’t already have a vested interest in the topics they address. It is to the credit of the Congressional Research Service that it makes important policy issues slightly less boring and more digestible. Some previously unnoted CRS reports are these (all pdf):

“Veterans’ Health Care Issues in the 109th Congress,” updated October 26, 2006.

“Natural Gas Markets in 2006,” updated December 12, 2006.

“The WTO, Intellectual Property Rights, and the Access to Medicines Controversy,” updated December 12, 2006.

“The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): Congressional Issues,” updated December 14, 2006.

Finally, an unusual aircraft exhaust contrail photographed in Ohio last month suggests that experimental research into “pulsed detonation engines” or other forms of exotic propulsion continues. The distinctive “donuts on a rope” contrail was photographed east of Dayton, Ohio on November 10, 2006 by William D. Telzerow.

Thanks to all of those who helped sustain and encourage Secrecy News this year by providing essential financial support, access to documents, useful criticism and kind words.

1970 Intelligence Budget Figure Not a Secret

The State Department said today that it will modify the latest Nixon-era volume of the official Foreign Relations of the United States (FRUS) series to include the amount of the 1970 U.S. intelligence budget after Secrecy News pointed out that this number had previously been disclosed in an earlier volume of FRUS.

According to an editorial note in the latest FRUS volume published last week, “The President [Nixon] stated that the United States is spending a total of about [dollar amount not declassified] per year on intelligence and it deserves to receive a lot more for its money than it has been getting.” (Foreign Relations, 1969-1976, volume II, document 210).

But in another FRUS volume published last April, that ancient secret was already revealed:

“The President stated that the US is spending $6 billion per year on intelligence and deserves to receive a lot more for its money than it has been getting. (Foreign Relations, 1969-1976, volume VI, document 344).

“Thank you for pointing out the inconsistency between the editorial note in FRUS volume II and the document in volume VI,” wrote Edward C. Keefer, General Editor of the Foreign Relations of the United States series in an email message to Secrecy News today.

“We have brought it to the attention of the declassifying agency [i.e., CIA] and they have agreed to release the actual figure in the editorial note of volume II, making it consistent with the document in volume VI. We will make the change on the internet version of volume II and we should be able to make the change in printed volume II as well.”

“We are pleased that we have people like you who read our volumes with such care and help us make the series the best documentary record of U.S. foreign policy,” Dr. Keefer wrote.

CIA classification policy generally lacks rhyme or reason, so although the 1970 intelligence budget total has been declassified, the 1969 and the 1971 budget figures, for example, remain classified.

Special Operations on the Ascendant

“Not since World War II has this nation relied so heavily on its Special Operations Forces,” according to Gen. Bryan D. Brown, Commander of U.S. Special Operations Command (SOCOM).

Special operations are military actions “conducted in hostile, denied, or politically sensitive environments to achieve military, diplomatic, informational, and/or economic objectives employing military capabilities for which there is no broad conventional force requirement,” as defined in the Department of Defense Dictionary of Military Terms (updated 11/09/06).

“These operations often require covert, clandestine, or low visibility capabilities.”

“Special operations differ from conventional operations in degree of physical and political risk, operational techniques, mode of employment, independence from friendly support, and dependence on detailed operational intelligence and indigenous assets.”

The continued development of special operations capabilities is sketched out in a new SOCOM strategic planning document. See “Capstone Concept for Special Operations 2006″ (pdf).

The growing use of special operations personnel on intelligence collection missions has reportedly caused friction with the Central Intelligence Agency and “has also led to several embarrassing incidents for the United States, including a shootout in Paraguay and the exposure of a sensitive intelligence operation in East Africa,” according to the Los Angeles Times. See “U.S. seeks to rein in its military spy teams” by Greg Miller, Los Angeles Times, December 18.

Conversely, the role of the CIA in paramilitary activities has also led to turf battles and some potential blurring of the chain of command.

For general background, see “Special Operations Forces (SOF) and CIA Paramilitary Operations: Issues for Congress,” Congressional Research Service, updated December 6, 2006.

Selected CRS Reports

Some notable newly-updated reports from the Congressional Research Service that are not readily available in the public domain include these (all pdf).

“Coast Guard Deepwater Program: Background, Oversight Issues, and Options for Congress,” December 18, 2006.

“Radioactive Waste Streams: Waste Classification for Disposal,” updated December 13, 2006.

“Border Security: Barriers Along the U.S. International Border,” updated December 12, 2006.

“China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues,” updated December 11, 2006.

“Defense Procurement: Full Funding Policy — Background, Issues, and Options for Congress,” updated December 11, 2006.

“Foreign Students in the United States: Policies and Legislation,” updated December 8, 2006.

“Nuclear Arms Control: The Strategic Offensive Reductions Treaty,” updated October 12, 2006.

National Reconnaissance Office Yields to FAS Lawsuit

A government attorney indicated yesterday that the National Reconnaissance Office will cease to oppose a Freedom of Information Act request from the Federation of American Scientists for unclassified NRO budget justification documents, and that it will provide the requested records as early as next week.

Last July, a federal court ruled (pdf) in favor of FAS and told the NRO that the budget documents are not “operational files” that would be exempt from processing under the FOIA. In September, the NRO filed a notice of appeal (pdf) seeking to overturn the court order.

But this week, after FAS filed a motion to compel the NRO to comply with the order, the agency said it would withdraw its appeal and provide the document.

The case will have a favorable ripple effect throughout the intelligence community, since other intelligence organizations such as the National Geospatial-Intelligence Agency also claim that their budget records are “operational files” that are exempt from FOIA processing. Now that the court’s order on this issue stands unchallenged, such claims will be nullified.

One Secrecy News reader wrote to express his concern that we were using the law to force NRO to disclose records that should not be disclosed in the interests of national security. But that is not the case. FOIA exemptions for properly classified national security information and for intelligence sources and methods remain in place and in effect.

But NRO has now been forced to disclose all non-exempt budget information, as the law requires.

Selected case files from Aftergood v. National Reconnaissance Office may be found here.

The anticipated receipt of NRO budget material will be noted in Secrecy News when it occurs.

Automatic Declassification Deadline Looms

In his March 2003 executive order 13292, President Bush affirmed that on December 31, 2006, with certain limitations, “all classified records that (1) are more than 25 years old and (2) have been determined to have permanent historical value under title 44, United States Code, shall be automatically declassified whether or not the records have been reviewed.”

That December 31 deadline is now almost here, the New York Times noted in a front page story today. See “U.S. to Declassify Secrets at Age 25″ by Scott Shane, New York Times, December 21.

The automatic declassification of 25 year old records, which will continue to apply to new records each year as they become 25 years old, is a genuine innovation in classification policy. It is a credit both to the Clinton Administration, which first adopted the proposal, and the Bush Administration, which did not abandon it.

In practice, however, the impact of the policy may not be as dramatic as one might imagine, for several reasons.

First, many agencies have sought and received exemptions for one of nine categories of information (war plans, intelligence sources, WMD information, etc.) that need not be declassified. (Selected agency declassification plans may be found here.)

Second, records that involve the interests (“equities”) of more than one agency are not subject to this month’s deadline. Rather, they are to be declassified by December 31, 2009.

Third, declassification does not imply immediate disclosure. Some declassified records may still need to be reviewed for privacy data and other exempt information.

Finally, the processing of hundreds of millions or billions of declassified pages to make them publicly accessible is a logistical challenge that may exceed the capability of the National Archives, which has faced increasing budgetary pressures.

Unless Congress chooses to provide supplemental resources for the Archives, many declassified records will remain inaccessible.

In a December 21 news release (pdf), the Office of Director of National Intelligence announced the declassification of “four decades of U.S. intelligence on Yugoslavia” including 34 recently declassified National Intelligence Estimates. The records are available through the National Intelligence Council.

Security Clearances for “Meritorious” Former Criminals

In a well-intentioned but clumsy legislative maneuver known as the Smith Amendment, Congress in 2000 generally prohibited the Department of Defense from granting security clearances to individuals who had been convicted of a crime and sentenced to prison for more than a year.

“Because of the severity of the Amendment, many long-time, faithful employees of the government lost their clearances and their jobs for minor offenses occurring long ago,” notes attorney Sheldon Cohen in a new analysis (pdf) of the Smith Amendment.

The measure was modified somewhat in 2004 and both the original and the modified version allowed exceptions for “meritorious” cases. But both failed to articulate what constitutes a “meritorious” case that would justify an exception to the rule.

“There is nothing in the legislative history to indicate what standard Congress intended to be applied for granting waivers,” observed Cohen, a specialist in security clearance policy.

Cohen describes the evolution of the Smith Amendment, its ambiguities and the problems it has created. He concludes with a proposed set of principles for evaluating whether a particular individual qualifies for a meritorious exception to the Smith Amendment rule.

See “Smith Amendment Update” by Sheldon I. Cohen, December 2006.

Former national security advisor Sandy Berger is prohibited from handling classified material for at least three years as a result of his illicit removal of records from the National Archives in 2003, to which he pleaded guilty last year. Some startling new details of that case were presented in a declassified National Archives Inspector General report, obtained under the Freedom of Information Act by the Associated Press. See “How an Ex-Aide to President Clinton Stashed Classified Documents” by Josh Gerstein, New York Sun, December 21.

The National Security Council (NSC) Policy Coordinating Committee (PCC) on Records Access and Information Security Policy this week approved a “program of instruction” (pdf) to help promote reciprocity among agencies in granting security clearances.

Key Foreign Affairs Issues for the 110th Congress (CRS)

A new report from the Congressional Research Service presents a comprehensive 80-page survey of foreign policy and national security issues that will face the next Congress. See “Foreign Affairs, Defense and Trade: Key Issues for the 110th Congress” (pdf), December 20, 2006.

Also newish from CRS is “Bioterrorism Countermeasure Development: Issues in Patents and Homeland Security” (pdf), updated November 27, 2006.

Covert Action Against the Soviet Union, 1969-1970 (FRUS)

The Nixon Administration gave high priority to covert action against the Soviet Union and its interests around the world, according to newly published declassified records (pdf).

“With respect to black operations, the President enjoined me to hit the Soviets, and hit them hard, any place we can in the world,” wrote CIA director Richard Helms in a March 25, 1970 memorandum for the record.

“He said to ‘just go ahead,’ to keep Henry Kissinger informed, and to be as imaginative as we could. He was as emphatic on this as I have ever heard him on anything,” Mr. Helms wrote.

The Helms memorandum and other records on U.S. covert action against the Soviet Union were published this week in a new volume of Foreign Relations of the United States (FRUS).

“The total cost of this program is $766,000,” one document noted, in a departure from previous CIA practice of redacting almost all intelligence budget expenditures.

The newly published documents on covert action against the Soviet Union are collected and posted here.

The full text of the source volume of Foreign Relations of the United States, 1969-1976, volume XII (Soviet Union, January 1969-October 1970), may be found here.

A companion volume FRUS volume, volume XIV (Soviet Union, October 1971-May 1972), also newly published, is here.

FAS Asks Court to Compel NRO Compliance with FOIA

The Federation of American Scientists yesterday asked (pdf) a federal court to enforce a court order directing the National Reconnaissance Office (NRO) to process a Freedom of Information Act request for unclassified budget information after the NRO said it had “decided” not to do so.

In a July 24, 2006 order, D.C. District Judge Reggie B. Walton rejected an NRO claim that the requested budget information was an “operational” file that is exempt from the FOIA. He ordered the agency to process the request.

On September 20, the NRO filed notice that it would appeal that ruling.

Last month, the agency said that in light of the pending appeal it had “decided not to produce the document(s) in question.”

By law, however, the NRO is not entitled to make such a decision. Rather, it must request and receive a stay of the court order, which it failed to do.

In a December 18 motion in the case, Aftergood v. National Reconnaissance Office, we asked Judge Walton to enforce his July 24 order.