Posts from May, 2007

OSCE Reports on Access to Information

A major new report from the Organization for Security and Cooperation in Europe (OSCE) describes government secrecy and public access policies in dozens of countries from Albania to Uzbekistan.

The report surveyed freedom of information (FOI) laws, national security classification policies, penalties for unauthorized disclosures of information, and provisions for protecting journalists’ sources.

There is good news and bad news, the report says.

“The FOI trend in the OSCE participating States is positive. Out of 56 OSCE participating States, 45 started their ‘Copernican revolution’ in favour of the public’s right to know, by adopting national laws on access to information.”

“Unfortunately, many countries retained the right to classify a too wide array of information as ‘state secrets’. In fact, the majority of the OSCE participating States have not yet adjusted their rules of classification to the FOI principles, that is, they disregard the primacy of the public’s right to know.”

The report offers some comparative analysis and proposes a series of “best practices” in promoting public access to government information.

“There should be sanctions for those who deliberately and improperly designate information as secret or maintain excessive secrecy,” the report advises.

See the summary report, entitled “Access to information by the media in the OSCE region: trends and recommendations,” Organization for Security and Cooperation in Europe, 30 April 2007.

The underlying country reports (423 pages) are available here.

Federal ID Plan Threatens Privacy, Say JPL Scientists

A Bush Administration plan to require a standardized identification system for federal employees poses “severe threats to the privacy rights of scientists and others,” employees at NASA’s Jet Propulsion Laboratory (JPL) wrote to Congress last week (pdf).

In August 2004, President Bush issued Homeland Security Presidential Directive (HSPD) 12, “Policy for a Common Identification Standard for Federal Employees and Contractors,” which was intended to enhance security by establishing a mandatory, verifiable, and standardized identification system for government personnel.

But the implementation of the Directive is doing more than that, the JPL scientists told Congress.

“We and our colleagues have found that this order, which is merely intended to establish a common standard of identification for access to federal facilities, is being used to gather extensive personal information about employees, including fingerprints, racial, ethnic, financial and medical information.”

“Rigorous proof [of identification] does not require intrusion into the personal lives of federal employees,” they wrote on April 26.

Aside from civil liberties concerns, they added, the collection of personal data under HSPD-12 has “a very negative impact on our ability to recruit the very best scientific and engineering talent to address our nation’s complex technical needs.”

“In the face of such intrusions talented researchers are inclined to take positions elsewhere, where the employers have a modicum of respect for the Constitution.”

The four JPL scientists addressed their request for relief to Rep. Rush Holt (D-NJ) and Rep. Vernon J. Ehlers (R-Mich.) since “the four of us, like the two of you, hold doctorates in the physical sciences.”

Court Urged to Assess State Secret Claims

When the government asserts the state secrets privilege in the course of litigation, the judiciary must independently evaluate the purported secret that is at issue and should not simply defer to the executive branch, several public interest groups argued in an amicus curiae brief (pdf) this week.

The brief, to which the FAS Project on Government Secrecy signed on, was filed in the 9th Circuit Court of Appeals in a state secrets case involving alleged domestic intelligence surveillance (Hepting v. USA, and related cases).

“The government’s extreme reading of the [state secrets] privilege would thwart government accountability, denying a forum for legitimate claims of government wrongdoing and undermining independent judicial review of executive action,” the brief stated.

Army Clamps Down with New OPSEC Policy

Updated below

A new U.S. Army regulation (pdf) on Operations Security (OPSEC) would sharply restrict the ability of soldiers to participate in public life without supervision and authorization from superior officers.

The regulation also encourages Army personnel to view attempts by unauthorized persons to gather restricted information as an act of subversion against the United States.

“All Department of the Army personnel and DoD contractors will… consider handling attempts by unauthorized personnel to solicit critical information or sensitive information as a Subversion and Espionage Directed Against the U.S. Army (SAEDA) incident,” the regulation states (at section 2-1).

“Sensitive” information is defined here (at section 1-5(c)(3)(e)) to include not just vital details of military operations and technologies but also documents marked “For Official Use Only” (FOUO) that may be exempt from disclosure under the Freedom of Information Act.

It follows that inquisitive members of the press or the public who actively pursue such FOUO records may be deemed enemies of the United States.

In what seems to be a serious conceptual muddle, the new regulation conflates OPSEC, which is supposed to be a defense against adversaries of the United States, with FOIA restrictions, which regulate public access to government information. As a result, it appears that OPSEC procedures are now to be used to control access to predecisional documents, copyrighted or proprietary material, and other FOIA-exempt records.

A copy of the new regulation, dated April 19 and itself marked For Official Use Only, was obtained by Wired News and is posted here.

Taken at face value, the regulation would spell the end of military blogging and would severely curtail military participation in public life. It imposes a non-discretionary pre-publication review requirement, stating that “all Department of the Army personnel… will… consult with their immediate supervisor… prior to publishing or posting information in a public forum.” (sec. 2-1).

It was reported by Noah Shachtman in “New Army Rules Could Kill G.I. Blogs (Maybe E-mail, Too),” Danger Room, May 2.

The terms of the Army regulation are so expansive as to create innumerable new opportunities for violations and infractions. Just this week, for example, the Army’s own 1st Information Operations Command ironically posted a briefing on “OPSEC in the Blogosphere” (pdf) marked For Official Use Only.

(Thanks, again, to Entropic Memes.)

Update: The Army issued a fact sheet (pdf) that appears to retreat significantly from the provisions of the new Regulation. See Army to Bloggers: We Won’t Bust You. Promise. by Noah Shachtman in Danger Room, and Army clarifies blogging policy by Jason Miller, Federal Computer Week.

New Doctrine on Joint Special Operations

The planning and performance of Joint Special Operations are described in some detail in a new publication (pdf) from the Joint Chiefs of Staff.

“Joint special operations (SO) are conducted by SOF [special operations forces] from more than one Service 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.”

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

“SO differ from conventional operations in degree of physical and political risk, operational techniques, use of special equipment, modes of employment, independence from friendly support, and dependence on detailed operational intelligence and indigenous assets.”

See “Joint Special Operations Task Force Operations,” Joint Publication 3-05.1, 26 April 2007 (400 pages, 1.8 MB PDF).

Oversight of Air Force Intelligence Activities

“Air Force intelligence components do not engage in experimentation involving human subjects for intelligence purposes,” a new Air Force Instruction (pdf) states categorically.

Except for the exceptions.

“Any exception would require approval by the Secretary or Under Secretary of the Air Force and would be undertaken only with the informed consent of the subject and in accordance with procedures established by AF/SG to safeguard the welfare of subjects.”

The new Instruction presents a generally scrupulous account of the regulatory framework within which Air Force intelligence operates. It addresses domestic search and surveillance, imagery collection and dissemination, mail covers, and other intelligence activities.

See Air Force Instruction 14-104, “Oversight of Intelligence Activities,” 16 April 2007.

Some other noteworthy new Air Force Instructions include these (both pdf):

AFI 10-2604, “Disease Containment Planning Guidance,” 6 April 2007.

AFI 40-201, “Managing Radioactive Materials in the U.S. Air Force,” 13 April 2007.

Various Resources

“During calendar year 2006, the Government made 2,181 applications to the Foreign Intelligence Surveillance Court for authority to conduct electronic surveillance and physical search for foreign intelligence purposes,” according to the latest Justice Department report to Congress on implementation of the Foreign Intelligence Surveillance Act (pdf). The court approved 2,176 applications, making substantive modifications to 73 of them, and denying one, in part.

The Open Government Act of 2007, which would strengthen several access provisions of the Freedom of Information Act, was favorably reported by the Senate Judiciary Committee for consideration by the full Senate. Much of the Committee report on the bill was devoted to a lengthy critique by Sen. Jon Kyl (R-AZ), who unsuccessfully opposed it, and a letter from the Justice Department, likewise in opposition.

The responsibilities of various Pentagon components in dealing with the threat of weapons of mass destruction are delineated in a new directive. See “Department of Defense (DoD) Combating Weapons of Mass Destruction (WMD) Policy” (pdf), DoD Directive 2060.02, April 19, 2007.

“Sudan: The Crisis in Darfur and Status of the North-South Peace Agreement” (pdf) is the subject of a report from the Congressional Research Service, updated March 27, 2007.