Posts from March, 2008

Secrecy Reigns at the DoJ Office of Legal Counsel

The Justice Department’s Office of Legal Counsel (OLC), which is responsible for interpreting the law for executive branch agencies, has played an influential role in the development of Bush Administration policy, and an unusually secretive one.

In a December 7 floor statement, Senator Sheldon Whitehouse (D-RI) described the contents of three OLC opinions that he had been able to review. One of them discussed the nature of executive orders as a category. Sen. Whitehouse characterized the conclusions of that OLC opinion as follows:

“An Executive order cannot limit a President. There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order.”

We requested a copy of that seemingly innocuous, if questionable, opinion under the Freedom of Information Act. But the request was denied.

“We are withholding the document in full because it is classified and thus exempt under Exemption 1 of the FOIA,” the OLC responded (pdf).

“The OLC should publicly release more of its opinions, as was routinely done during Janet Reno’s tenure as attorney general during the 1990s,” the Washington Post editorialized today. “Too many Bush OLC memos remain secret, with only a handful of administration officials being privy to their conclusions.”

“During the Bush administration, the OLC has become known as a partisan enabler of legally and ethically questionable presidential policies, including those involving the use of torture.”

Sunshine Week

Sunshine Week, a national campaign to promote openness and access to information, is March 16-22, 2008. Numerous events at the national and local level, as well as online, have been scheduled to encourage a public dialogue on transparency. More information and abundant resources can be found here.

National Freedom of Information Act day will be observed on March 14 with a day-long conference sponsored by the First Amendment Center.

The recently-formed Collaboration on Government Secrecy at the American University’s Washington College of Law will hold a conference on Monday March 17.

OpenTheGovernment.org will hold a webcast conference on Government Secrecy at the National Press Club on March 19.

Other national and local Sunshine Week events are noted here.

The Reimer Digital Library is Back

The U.S. Army today restored public access to the Reimer Digital Library, as it had promised to do in response to a Freedom of Information Act request from the Federation of American Scientists.

At first glance, the site appears to be complete. Or at least as complete as it was before it was closed to the public last month. But there are some anomalies.

Among the items listed under “New Documents” is Field Manual Interim (FMI) 3-04.155, “Army Unmanned Aircraft System Operations.” Oddly, the link to this document is marked as Restricted, and it cannot be downloaded from the Reimer site. However, Secrecy News obtained a copy independently, and it is posted here (9 MB PDF file). The document is clearly marked “approved for public release; distribution is unlimited.”

Seemingly arbitrary restrictions on public access to online records continue to appear, and we try to swat them down when we can.

Yesterday, the Federation of American Scientists filed a Freedom of Information Act request (pdf) asking the U.S. Marine Corps to release all of the unclassified contents of its online doctrine library. That site, which had previously been available to the public, no longer is.

Frederick Seitz and the 1970 Task Force on Secrecy

The distinguished scientist Frederick Seitz who died this week was not only an accomplished physicist, global warming skeptic and tobacco industry-funded medical researcher, as obituaries in the New York Times and Washington Post observed.

He was also an early, incisive critic of government secrecy.

In 1969-70, Dr. Seitz chaired the Defense Science Board Task Force on Secrecy, leading a stellar panel of defense scientists and technologists such as Edward Teller, Jack Ruina, Marshall Rosenbluth and others, who identified fundamental defects in the secrecy and security policies of the time.

Their Task Force Report on Secrecy presented an acute critique of secrecy policy that remains pertinent.

“When an otherwise open society attempts to use classification as a protective device, it may in the long run increase the difficulties of communications within its own structure so that commensurate gains are not obtained,” the Report stated.

“Classification of technical information impedes its flow within our own system, and, may easily do far more harm than good by stifling critical discussion and review or by engendering frustration. There are many cases in which the declassification of technical information within our system probably had a beneficial effect and its classification has had a deleterious one.”

“In the opinion of the Task Force the volume of scientific and technical information that is classified could profitably be decreased by perhaps as much as 90 percent through limiting the amount of information classified and the duration of its classification.”

“The Task Force noted that more might be gained than lost if our nation were to adopt– unilaterally, if necessary– a policy of complete openness in all areas of information, but agreed that in spite of the great advantages that might accrue from such a policy, it is not a practical proposal at the present time.”

A copy of the 1970 Final Report of the Defense Science Board Task Force on Secrecy, chaired by the late Dr. Frederick Seitz, is posted here.

Commercial Satellites as “National Technical Means”

U.S. intelligence agencies could do more to incorporate commercial satellite capabilities into the U.S. intelligence satellite architecture, an advisory panel told the Directors of the National Geospatial-Intelligence Agency (NGA) and the National Reconnaissance Office (NRO) in a study last year.

The report (pdf) laid out several scenarios for integrating commercial capabilities into the government’s “National Technical Means.”

The panel’s preferred scenario “that mitigates the most risk is for the US government to competitively acquire satellites and supporting infrastructure to ensure maximum control and access to imagery data on demand.”

Purchase of satellites is warranted, the panel said, because “The US government cannot rely on or be dependent on any external entity to responsively get needed data.”

The report “contains general findings about the technical competency and business viability of commercial remote sensing vendors, suppliers, and CDPs [commercial data providers] in the United States.”

The report also specifies the standards that commercial vendors need to meet in order to satisfy a spectrum of intelligence requirements.

“The requested review was in response to concerns/criticisms by Congress of how NGA and NRO have under-utilized commercial remote sensing capabilities.”

The unclassified report has not been publicly released, but a copy was obtained by Secrecy News. See “Independent Study of the Roles of Commercial Remote Sensing in the Future National System for Geospatial-Intelligence (NSG),” Report to the Directors of the NGA and the NRO, July 16, 2007.

I.F. Stone Project on Journalistic Independence

I.F. Stone (1907-1989), the celebrated journalist and iconoclast who was renowned for his independence, is being remembered in the service of the values he embodied.

The Nieman Foundation at Harvard University today announced the establishment of an I.F. Stone Award for journalistic independence, integrity and courage.

A richly detailed new website devoted to I.F. Stone provides excerpts from his writings, biographical information, reminiscences and other information.

Proliferation Security Initiative, and More from CRS

Noteworthy new or updated reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Proliferation Security Initiative (PSI),” updated February 4, 2008.

“Botnets, Cybercrime, and Cyberterrorism: Vulnerabilities and Policy Issues for Congress,” updated January 29, 2008.

“Executive Order 13,438: Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq,” updated January 29, 2008.

“Armenia, Azerbaijan, and Georgia: Security Issues and Implications for U.S. Interests,” updated January 31, 2008.

“Asylum Law and Female Genital Mutilation: Recent Developments,” February 15, 2008.

“‘Wounded Warrior’ and Veterans Provisions in the FY2008 National Defense Authorization Act,” February 13, 2008.

GAO Oversight Office at NSA Lies Dormant

The Government Accountability Office maintains an office at the National Security Agency but it remains unused since no one in Congress has asked GAO to perform any oversight of the Agency, the head of GAO disclosed last week.

Despite multi-billion dollar acquisition failures at NSA and the Agency’s controversial, possibly illegal surveillance practices, Congress has declined to summon all of its oversight resources such as GAO to address such issues.

In testimony (pdf) before a Senate Homeland Security subcommittee on February 29, I argued that the GAO has demonstrated the ability to contribute to oversight of U.S. intelligence agencies and that it should be called upon to do so again.

Although U.S. intelligence community leaders say they oppose a GAO role in intelligence oversight, I noted that GAO oversight staff have in the past been permanently stationed at NSA, where they successfully conducted audits and investigations.

Questioned on that point by Senator Daniel Akaka, Comptroller General David M. Walker, the outgoing director of GAO, confirmed that it was true.

“We still actually do have space at the NSA. We just don’t use it and the reason we don’t use it is we’re not getting any requests, you know. So I don’t want to have people sitting out there twiddling their thumbs,” Mr. Walker said.

His prepared statement, entitled “GAO Can Assist the Congress and the Intelligence Community on Management Reform Initiatives” (pdf), and those of the other witnesses at the February 29 hearing may be found here.

The hearing, which was broadcast live on C-SPAN, can be viewed here (requires RealPlayer).

See also “Panel witnesses press for GAO audits of intelligence agencies” by Chris Strohm, Congress Daily, February 29.

A Clandestine Declassifier

A Central Intelligence Agency employee who supported Agency declassification activities was killed in a traffic accident late last year. Perhaps befitting a CIA classification official, his name has not been publicly acknowledged by the Agency.

“The CIA expressed its sadness concerning a CIA member’s death,” according to a brief notice in the December 2007 minutes of a closed session of the State Department Historical Advisory Committee, which were published last week. “The member had served as a moving force on declassification issues.”

Secrecy News asked CIA Public Affairs to provide the name of the CIA member. No response was received.

But a former Agency colleague identified him as Bob Knight.

His death in a motorcycle accident on the way to work was “a major blow to the rather small CIA declassification cadre.”

“I think his career was mostly in the DI [Directorate of Intelligence], but he had worked in declassification since at least 2002.”

Mr. Knight previously served as an Assistant Information Review Officer and worked on at least three major NIC publications, including National Intelligence Estimates on China, Vietnam, and the former Yugoslavia. Just prior to his death, he was serving as CIA coordinator for the Foreign Relations of the United States series.

“Bob’s death was keenly felt by all who had worked with him,” the former colleague said.