Posts from April, 2008

Secret Law Debated in Senate Hearing

Secret law that governs the conduct of government activities but is inaccessible to the public is “a particularly sinister” phenomenon that is “increasingly prevalent,” said Senator Russ Feingold today at a hearing of the Senate Judiciary Committee Subcommittee on the Constitution.

The hearing produced a particularly rich record on the subject of secret law from a broad and diverse set of perspectives (including one view that “there is no such thing” as secret law).

In my own testimony (pdf), I provided a catalog of the many current forms of “secret law” and some of their objectionable consequences.

“If the rule of law is to prevail, the requirements of the law must be clear and discoverable,” I suggested. “Secret law excludes the public from the deliberative process, promotes arbitrary and deviant government behavior, and shields official malefactors from accountability.”

The classification of the Office of Legal Counsel (OLC) memorandum of torture authored by John Yoo was “one of the worst abuses of the classification process I have seen during my career,” testified J. William Leonard (pdf), the former director of the Information Security Oversight Office.

More generally, “OLC has been terribly wrong to withhold the content of much of its advice from Congress and the public,” said Prof. Dawn E. Johnsen (pdf), former head of the OLC, “particularly when advising the executive branch that in essence it could act contrary to federal statutory restraints.”

Current OLC director John P. Elwood (pdf) contended that current OLC disclosure policy “is consistent with the approach of prior Administrations.”

Brad Berenson (pdf), a former associate counsel to the President, articulated “legitimate interests in secrecy” and cautioned against disclosure initiatives that could have unintended consequences.

Prof. Heidi Kitrosser (pdf) explained the constitutional framework within which secrecy disputes take place and urged more “effective congressional oversight” to restrain abuses of secrecy.

Attorney David Rivkin, a frequent defender of Administration policies, said that the “law of war” paradigm with all of its attendant secrecy remains the appropriate one.

Sen. Sam Brownback expressed skepticism about new disclosure requirements, while Sen. Sheldon Whitehouse probed the destabilizing implications of the Administration view that executive orders can be “waived” by the President without notice to Congress or the public.

The prepared statements from the Senate hearing are available here.

For all of the differences of opinion, there was also a provisional consensus that the executive branch should be required to report to Congress when it significantly interprets or reinterprets a statutory requirement.

Chairman Feingold announced that the Office of the Director of National Intelligence had notified him that several long-sought opinions of the Office of Legal Counsel concerning interrogation of enemy combatants would be provided to the Senate Intelligence Committee and possibly, in some form, to the Senate Judiciary Committee. Sen. Feingold said he would continue to seek public disclosure of the opinions, a move that is not currently contemplated by the Administration.

House Judiciary Questions Secrecy of OLC Opinions

The House Judiciary Committee has asked the Attorney General (pdf) to report on the classification status of all written opinions of the Justice Department’s Office of Legal Counsel issued since 2001 that deal with national security, terrorism, civil or constitutional rights of U.S. citizens, or presidential, judicial or congressional power.

“While we appreciate the need to hold closely certain types of information in certain circumstances, we are skeptical that more information regarding the Department’s analysis of relevant and important legal issues cannot responsibly be made public,” wrote Rep. John Conyers, Jr., chair of the House Judiciary Committee and Rep. Jerrold Nadler, chair of the Subcommittee on the Constitution on April 29.

Citing a recent story in Secrecy News, they told the Attorney General that “Recent revelations about the nature and extent of such secret opinions make plain the need for Congress and the American public to receive information on this subject.”

Resources on the Israeli Strike in Syria

The September 6, 2007 Israeli strike against a suspected Syrian nuclear facility remains a puzzle despite the confident assertion by U.S. intelligence officials last week (pdf) that the target was a Syrian reactor constructed for the production of plutonium with the assistance of North Korea.

An extensive, frequently updated collection of open source materials on the subject — including foreign and domestic news reports, satellite imagery and analysis — has been compiled by Allen Thomson in “A Sourcebook on the Israeli Strike in Syria, 6 September 2007″ (currently 812 pages in a 15 MB PDF file).

An updated bibliography of Syrian nuclear science research, from reactor safety to laser isotope separation, was prepared by researcher Mark Gorwitz. See “Syrian Nuclear Science Bibliography: Open Literature Citations” (pdf), April 2008.

A list of all cooperative agreements between the International Atomic Energy Agency and the Atomic Energy Commission of Syria, also compiled by Mr. Gorwitz, is here (pdf).

The web site of the Atomic Energy Commission of Syria is here.

A New Ambassador from Bahrain

The next ambassador from Bahrain to the United States will be a Jewish woman named Huda Ezra Ebrahim Nonoo, according to a report in last week.

“Huda is Bahrain’s nominee for the post and this is of course very good news for Bahrain’s deep-rooted values of tolerance and openness,” said Faisal Fouladh of the Shura Council, the upper house of Bahrain’s legislature. The Shura Council currently includes 11 women, including one Christian.

See “Bahrain set to name Jewish woman envoy” by Habib Toumi, GulfNews, April 25.

Alone among Muslim countries, Bahrain and Bosnia have Jewish diplomats in senior positions, said Stephen S. Schwartz of the Center for Islamic Pluralism.

Hearing on Secret Law

The Senate Judiciary Committee will hold a hearing April 30 on the subject of “secret law.”

“It’s been nearly forty years since Professor Kenneth Davis stated in his seminal treatise on administrative law that ‘Secret law is an abomination’,” according to a Committee announcement.

“The upcoming hearing will examine the extent to which this abomination is gradually becoming a common state of affairs, and its effect on our democracy.”

The hearing will be chaired by Sen. Russ Feingold. I will be testifying, along with J. William Leonard, the former director of the Information Security Oversight Office, and a diverse group of others. See “Secret Law and the Threat to Democratic and Accountable Government.”

Presidential Claims of Executive Privilege, and More from CRS

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

“Africa Command: U.S. Strategic Interests and the Role of the U.S. Military in Africa,” updated March 10, 2008.

“High Altitude Electromagnetic Pulse (HEMP) and High Power Microwave (HPM) Devices: Threat Assessments,” updated March 26, 2008.

“Second FY2008 Supplemental Appropriations for Military Operations, International Affairs, and Other Purposes,” April 15, 2008.

“Iraq: Regional Perspectives and U.S. Policy,” updated April 4, 2008.

“Operation Iraqi Freedom: Strategies, Approaches, Results, and Issues for Congress,” March 28, 2008.

“Major U.S. Arms Sales and Grants to Pakistan Since 2001″ (fact sheet), updated April 23, 2008.

“Pakistan-U.S. Relations,” updated March 27, 2008.

“Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments,” updated April 16, 2008.

National Security and the Presidential Transition

“The 2008-2009 election marks the first presidential transition in the post-9/11 era, and is of concern to many national security observers,” a new report (pdf) from the Congressional Research Service says.

“While changes in administration during U.S. involvement in national security related activities are not unique to the 2008-2009 election, many observers suggest that the current security climate and recent acts of terrorism by individuals wishing to influence national elections and change foreign policies portend a time of increased risk to the current presidential transition period.”

“This report discusses historical national-security related presidential transition activities, provides a representative sampling of national security issues the next administration may encounter, and offers considerations and options relevant to each of the five phases of the presidential transition period.”

See “2008-2009 Presidential Transition: National Security Considerations and Options,” April 21, 2008.

Meanwhile, “A growing community of interest, including Members of Congress, senior officials in the executive branch, and think-tank analysts, is calling for a reexamination of how well the U.S. government, including both the executive branch and Congress, is organized to apply all instruments of national power to national security activities,” according to another new CRS report (pdf).

“The organizations and procedures used today to formulate strategy, support presidential decision-making, plan and execute missions, and budget for those activities are based on a framework established just after World War II.”

“The ‘outdated bureaucratic superstructure’ of the 20th century is an inadequate basis for protecting the nation from 21st century security challenges, critics contend, and the system itself, or alternatively, some of its key components, requires revision.”

The new CRS report is intended “to help frame the emerging debates by taking note of the leading advocates for change, highlighting identified shortcomings in key elements of the current system, and describing categories of emerging proposals for change.”

See “Organizing the U.S. Government for National Security: Overview of the Interagency Reform Debates,” April 18, 2008.

The Congressional Research Service, acting at the direction of Congress, does not make its publications directly available to the public.

A Primer on Science Policy, and More from CRS

The basic structures and procedures of science and technology policymaking are presented in detail in a new report from the Congressional Research Service. See “Science and Technology Policymaking: A Primer” (pdf), April 18, 2008.

Other noteworthy new reports from the Congressional Research Service that have not been made readily available online include the following (all pdf).

“Information Security and Data Breach Notification Safeguards,” updated April 3, 2008.

“Congressional Oversight of Intelligence: Current Structure and Alternatives,” updated April 1, 2008.

“Data Mining and Homeland Security: An Overview,” updated April 3, 2008.

“Security Implications of Taiwan’s Presidential Election of March 2008,” April 4, 2008.

National Security Letters and Secret Law

The implications of the expanded use of “national security letters” by the FBI and other agencies to compel disclosure of business record information will be explored in a hearing tomorrow before the Senate Judiciary Committee.

For an introduction to the subject see “National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments” (pdf), Congressional Research Service, updated March 28, 2008.

Next week on April 30, Sen. Russ Feingold will chair a Senate Judiciary subcommittee hearing on “Secret Law and the Threat to Democratic and Accountable Government.”

Stage Set for Transfer of CIA Records to National Archives

A memorandum of understanding (pdf) signed this month by the Director of the Central Intelligence Agency and the National Archivist is expected to enable the transfer of many permanently valuable historical CIA records that are 50 years old or older to the custody of the National Archives (NARA), officials of both agencies said today.

Up to now, “we haven’t had a framework” for such transfers, said Joe Lambert, the new CIA chief information officer. And so, with few exceptions, “we haven’t transferred anything [to the Archives] in the past.” (Exceptions include certain CIA records related to the JFK assassination, Nazi war crimes, and a few other topics, as well as translations of foreign news reports.)

The new memorandum “lays the groundwork for routine transfer of CIA records” to the National Archives once they become 50 years old, said Assistant Archivist Michael J. Kurtz. “This will institutionalize the process.”

The memorandum itself does not seem very promising. It imposes a number of binding requirements on NARA officials, including referral to CIA of any request for records that have not already been approved for public release. No binding requirements are imposed on CIA, beyond an open-ended commitment to “review” any such requests.

But Allen Weinstein, the Archivist of the United States, said the memorandum would pave the way for regular transfers of CIA records to the Archives, and would ultimately result in improved public access to those records.

“Access is a multi-step process,” said Gary M. Stern, General Counsel at the National Archives. “Getting the records into the Archives is the first step.”

Having “listened carefully to the words and the music, I was convinced that this [agreement] would serve the public interest,” said Dr. Weinstein. “I wouldn’t have signed it otherwise.”

The memorandum’s words, at least, can be found here.

CIA is expected to provide to NARA an index of records subject to transfer in the next few weeks, with actual transfers to follow sometime thereafter.

A March 2000 National Archives evaluation of “Records Management in the Central Intelligence Agency” provided some detailed insight into the subject.

At that time, NARA held that “CIA retention of permanent files for 50 years is no longer appropriate” and should be reduced to something closer to 30 years. But by default and inaction, 50 year retention of records by CIA has now become the goal that the agencies are striving for.