Posts from January, 2007

CRS Director Moves to Restrict Analysts’ Media Contacts

The Director of the Congressional Research Service last week issued a revised agency policy on “Interacting with the Media” that warns CRS analysts about the “very real risks” associated with news media contacts and imposes new restrictions on speaking to the press.

“CRS staff must report within 24 hours all on-the-record interactions with any media to their supervisor, including the name of the reporter, media affiliation, date, time, and detailed notes on the matters discussed or to be discussed,” the new policy states (pdf).

“Violations of the media policy will be addressed promptly,” wrote CRS director Daniel P. Mulhollan.

A copy of the CRS policy on “Interacting with the Media” was obtained by Secrecy News.

The new policy “will obviously have a chilling effect on staff,” said one CRS analyst on a not-for-attribution basis. “That’s what it is intended to do.”

The CRS has gained increasing prominence in the news media in recent years. The number of citations to CRS in the Nexis news database rose from 2,076 in 2004 to 3,101 in 2005 to 4,179 in 2006.

This growing public attention is a source of anxiety for CRS management, which fears that the agency may come to be perceived as having an institutional agenda of its own or that its impartiality will be questioned by members of Congress.

“We have all seen the way in which portions of products can be misquoted and taken out of context, potentially damaging the image of our colleagues and the Service in the eyes of some of our clients,” CRS director Mulhollan wrote.

“To assist CRS in refuting misstatements or misquotations, staff must keep detailed notes of media interactions and report promptly to their supervisor,” he instructed.

But the relative impartiality of the CRS and its analysts’ quasi-official standing make it an attractive resource for reporters covering all kinds of domestic and foreign policy matters.

The new restrictions on CRS contacts with the press will therefore be a blow first of all to reporters and others who rely on CRS expertise.

Over time, however, the new policy may also backfire against CRS itself. If analysts cannot publish or freely comment on subjects of their expertise, some will conclude that CRS is not a hospitable venue for their professional development and they will go elsewhere.

“From my personal perspective CRS is being managed without respect and trust for the staff,” said Dennis M. Roth, president of Congressional Research Employees Association, the CRS employees’ union, in July 27, 2006 testimony (pdf) to the House Administration Committee.

“Leadership can be accomplished in many ways, and we believe that CRS currently practices a style inappropriate, damaging, and destructive for a professional service organization…. It is autocratic, centralized, and secretive,” he said.

The State Secrets Doctrine and the Hatfill Case

In an unusual legal maneuver, the New York Times invoked the “state secrets” doctrine last month in a motion to dismiss the libel suit brought against it by Steven J. Hatfill, the former Army scientist who said he was erroneously linked by the Times to the 2001 anthrax attacks.

The case was dismissed on January 12, 2007 on other grounds (to be spelled out in an opinion that has not yet been published).

But in a sealed motion (pdf) on December 29, the New York Times argued that the classification restrictions imposed on the case were tantamount to an assertion of the state secrets privilege. Times attorneys cited the case law on state secrets to support their argument that the case should be dismissed.

The “state secrets” doctrine, they said, “precludes a case from proceeding to trial when national security precludes a party from obtaining evidence that is… necessary to support a valid defense. Dismissal is warranted in this case because the Times has been denied access to such evidence, specifically documents and testimony concerning the work done by plaintiff [Hatfill] on classified government projects relating to bioweapons, including anthrax.”

“It would be manifestly unjust and improper to require the Times to defend against the claims being advanced by Steven Hatfill without affording it access to critical information concerning his own activities that could serve to defeat those claims.”

“The government has not formally intervened in this case to assert the [state secrets] privilege, as it has typically done in analogous cases,” the Times acknowledged in an accompanying memorandum of law (pdf).

“Nevertheless, … it is now evident that the government has in fact invoked the privilege through ex parte evidentiary submissions by DOD, the Department of Justice and the CIA establishing that information concerning projects worked on by plaintiff and his colleagues were properly ‘classified’,” the Times’ attorneys claimed.

A redacted copy of the December 29 New York Times Memorandum of Law in Support of Defendant’s Motion for an Order Dismissing the Complaint Under the “State Secrets” Doctrine was obtained by Secrecy News.

Attorneys for Dr. Hatfill filed a sealed response on January 12 in opposition to the motion for dismissal on state secrets grounds. A redacted copy of their opposition was not immediately available.

An Effort to Restrict Classified Earmarks

The use of the national security classification system to conceal “earmarks” — targeted allocations of funds — that are self-serving or corrupt would be eliminated if a proposal by Senators Dianne Feinstein (D-CA) and Jay Rockefeller (D-WV) becomes law.

The proposal was offered as an amendment to Senate bill S. 1, the Legislative Transparency and Accountability Act of 2007, which is pending in the Senate.

“The amendment prohibits any bill authorization or appropriation from containing an earmark in the classified portion of that bill or accompanying a report, unless there is unclassified language that describes in general terms the nature of the earmark. The amount of the earmark is disclosed and the sponsor of the earmark is identified,” Sen. Feinstein explained.

“This amendment would provide the public with the assurance that the classified parts of the defense and intelligence budgets–which are indeed large–are subjected to the same scrutiny and openness as everything else.”

“The need for the amendment was made clear by the actions of former Congressman Duke Cunningham. According to a report by the House Intelligence Committee, Cunningham was able to enact a staggering $70 million to $80 million in classified earmarks over a 5-year period. These earmarks benefited his business partners and were not known to most Members of the Congress or the public,” Sen. Feinstein said on January 16.

The fate of the Legislative Transparency bill was uncertain after Republican Senators objected to a Democratic refusal to consider an amendment concerning a line-item veto.

Warrantless Surveillance Cases Go To FISA Court

Attorney General Alberto Gonzales notified the Senate Judiciary Committee yesterday that President Bush will not reauthorize the controversial Terrorist Surveillance Program and that the surveillance activities conducted in that program will henceforth be subject to authorization by the Foreign Intelligence Surveillance Court.

The Attorney General’s January 17 letter to Senators Patrick Leahy and Arlen Specter is here (pdf).

The initial responses of Senators Leahy and Specter are here.

The numerous questions raised by the Attorney General’s letter were asked though mostly not answered in a background briefing for reporters which is transcribed here.

Background on the Foreign Intelligence Surveillance Act may be found here.

Selected CRS Reports

Some noteworthy new reports of the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Iran: Profile and Statements of President Mahmoud Ahmadinejad,” January 16, 2007.

“Iraq: Regional Perspectives and U.S. Policy,” January 12, 2007.

“A Joint Committee on Intelligence: Proposals and Options from the 9/11 Commission and Others,” updated December 20, 2006.

“Sea-Based Ballistic Missile Defense — Background and Issues for Congress,” updated December 19, 2006.

“Federal Emergency Management Policy Changes After Hurricane Katrina: A Summary of Statutory Provisions,” December 15, 2006.

WaPo: How to Bury A Secret

The imposition of a deadline for automatic declassification of most 25 year old, historically valuable classified records on December 31, 2006 rewrote the bureaucratic software that governs the national security classification system. In principle, official secrecy can no longer be indefinite and open-ended.

Nevertheless, declassification will not be translated into disclosure and public access until the severe logistical and financial challenges that are facing the National Archives can be overcome.

The Washington Post took a look at the lay of the land in “How to Bury A Secret: Turn it into Paperwork” by Lynne Duke, January 16, 2007.

Intelligence Science Board Views Interrogation

The current state of scientific knowledge regarding the conduct of interrogation and related forms of intelligence gathering is limited by numerous gaps in theoretical and practical understanding, according to a new book-length study (pdf) from the Intelligence Science Board, an advisory panel to the U.S. intelligence community.

The study was prompted by “concerns about recent U.S. interrogation activities, subsequent investigations, and the efficacy of contemporary tactics, techniques, and procedures.”

The ISB report is somewhat artfully titled “Educing Information,” a term that encompasses interrogation as well as other forms of eliciting information.

The study notes that an accurate perception of the realities of interrogation has been impeded by erroneous preconceptions shaped by wish-fulfillment or popular culture.

“A major stumbling block to the study of interrogation, and especially to the conduct of interrogation in field operations, has been the all-too-common misunderstanding of the nature and scope of the discipline.”

“Most observers, even those within professional circles, have unfortunately been influenced by the media’s colorful (and artificial) view of interrogation as almost always involving hostility and the employment of force — be it physical or psychological — by the interrogator against the hapless, often slow-witted subject.” (p. 95).

A detailed literature review, expert interviews and consideration of the historical record present a more qualified and uncertain picture.

Fundamentally, “there is little systematic knowledge available to tell us ‘what works’ in interrogation. We do not know what systems, methods, or processes of interrogation best protect the nation’s security.”

“For example, we lack systematic information to guide us as to who should perform interrogations. We do not know what benefits would result if we changed the way we recruit, train, and manage our interrogators.” (p. 8).

Dr. Paulette Otis, a contributor to the study (though not an ISB member), summarized her view of its practical conclusions as follows: “(1) pain does not elicit intelligence known to prevent greater harm; (2) the use of pain is counterproductive both in a tactical and strategic sense; (3) chemical and biological methods are unreliable; (4) research tends to indicate that ‘educing’ information without the use of harsh interrogation is more valuable.”

And, of course, “‘more’ research is necessary,” said Dr. Otis, who is Outreach Coordinator at the Center for Irregular Warfare and Operational Culture in Quantico.

The unclassified ISB study was sponsored by the Defense Intelligence Agency and the Counterintelligence Field Activity, among other U.S. intelligence entities.

See “Educing Information: Interrogation: Science and Art: Foundations for the Future,” Intelligence Science Board, Phase 1 Report, December 2006 (374 pages, 2.5 MB).

Army Establishes Psyops Branch

“Effective 16 October 2006, Psychological Operations was established as a basic branch of the Army, pursuant to the authority of Section 3063(a)(13), Title 10, United States Code.”

That is the substance of General Order 30 (pdf) issued by Secretary of the Army Francis J. Harvey on January 12, 2007.

According to the Department of Defense Dictionary (JP 1-02), psychological operations are defined as “planned operations to convey selected information and indicators to foreign audiences to influence their emotions, motives, objective reasoning, and ultimately the behavior of foreign governments, organizations, groups, and individuals. The purpose of psychological operations is to induce or reinforce foreign attitudes and behavior favorable to the originator’s objectives. Also called PSYOP.”

OMB Backs Away From Disputed Risk Assessment Policy

In an uncommon victory for the objectivity of the scientific advisory process, the Office of Management and Budget said that it would not implement a proposed new policy on regulatory risk assessments after a National Academy of Sciences panel said the policy was “fundamentally flawed.”

Last January the OMB issued a proposed “bulletin” (pdf) that prescribed new, centralized procedures for performing regulatory risk assessments.

But “the proposed definition of risk assessment in the OMB bulletin departs without justification from long-established concepts and practices,” the NAS panel said.

What’s worse, the proposed changes would mean that “agency risk assessments are more susceptible to being manipulated to achieve a predetermined result.”

Accordingly, the NAS panel recommended that the OMB bulletin be withdrawn. See this January 11 news release on the NAS report.

In light of the NAS critique, the OMB will not finalize the proposed bulletin, Rick Weiss of the Washington Post reported today.

See OMB Watch for further background on the OMB risk assessment proposal and the resulting controversy.

Enhanced Whistleblower Protections Proposed

A bill to amend and strengthen the Whistleblower Protection Act was introduced yesterday by Senator Daniel Akaka (D-HI) and several bipartisan Senate colleagues.

“Our legislation ensures that Federal whistleblowers are protected from retaliatory action when notifying the public and government leaders of waste, fraud, and abuse,” Senator Akaka said.

“If we fail to protect whistleblowers, then our efforts to improve government management, protect the public, and secure the nation will also fail.”

See Introduction of the “Federal Employee Protection of Disclosures Act,” January 11.