Posts from December, 2008

Hamas and Israel: Conflicting Strategies

An improved understanding of the dynamics of the conflict between Hamas and Israel — one that goes beyond “they started it” — is probably a prerequisite to any enduring reduction of the violence and the terrible human suffering that the conflict now entails.

A detailed new assessment (pdf) by an analyst at the U.S. Army Strategic Studies Institute traces the evolution of the Israel-Hamas conflict prior to the end of the recent ceasefire and identifies steps that both sides would likely have to take in order to arrive at a long-term truce.

“Neither Israel nor the Palestinians have a unified position towards the other,” writes Sherifa Zuhur, professor of Islamic and regional studies at the Strategic Studies Institute. “Each group is socialized in particular ways, through the educational system, employment experiences; and for Israelis, in the military, in political parties, families, and bureaucracies.”

Based on her own interviews and analyses, the author attempts to elucidate the social, cultural and political factors at work.

A struggle to control the narrative of the conflict is itself part of the conflict and Prof. Zuhur’s account may not be fully embraced by anyone.  On the whole, her analysis seems more sympathetic to Hamas, whose objective, she says rather incongruously, “is not the destruction of Israel” but only the “liberation of Palestine.”

But even those who cannot accept her terms or the way she frames some of the issues may find food for thought in her 100-page paper (which does not represent an official U.S. Army position).

She concludes optimistically that “each side is still capable of revising its desired endstate and of the necessary concessions to establish and preserve a long-term truce, or even a longer-term peace.”

See “Hamas and Israel: Conflicting Strategies of Group-Based Politics” by Sherifa Zuhur, U.S. Army Strategic Studies Institute, December 2008.

The 1970 Crisis in Jordan, and More from FRUS

Many of the roots of today’s conflicts in the Middle East can be discerned in the crises of the past, some of which are newly documented in the latest volume of the official Foreign Relations of the United States (FRUS) series.

The new FRUS volume includes a section on the Nixon Administration’s response to the intense fighting between the Jordanian military and the Palestine Liberation Organization in September 1970, which threatened to topple the monarchy of King Hussein.

Another section treats “the Nixon administration’s efforts to replace the political and military structure left by the former British Empire with a newer structure that met America’s … needs,” as well as “the Nixon administration’s efforts to articulate a grand strategy toward the Middle East region through arms sales and military modernization for its regional allies.”

See Foreign Relations of the United States, 1969-1976, Volume XXIV, Middle East Region and Arabian Peninsula, 1969-1972; Jordan, September 1970 (published December 23, 2008).

The new FRUS volume was completed earlier this year, prior to the unexpected departure of Dr. Edward C. Keefer from the State Department Office of the Historian.  He had served for years as General Editor of the series, but left abruptly in what was perceived as a sign of mounting turmoil in the Historian’s Office.

Widespread concerns about continuing upheaval in the Historian’s Office were addressed by Secretary of State Condoleezza Rice in a meeting with historians on December 22.

Secretary Rice announced that she had established “an outside Review Team to provide recommendations about how to ensure the FRUS series remains the gold standard for diplomatic history scholarship.”

Aside from its importance to diplomatic historians and other specialists, the FRUS series embodies the vital principle that all U.S. foreign relations activities, no matter how highly classified they may initially be, will eventually be brought to light and published for the world to see.  Thanks to a remarkable 1991 statute, it is actually against the law for the FRUS series to be anything other than “thorough, accurate, and reliable.”

Government Secrecy: Classic and Contemporary Readings

The importance and the hazards of government secrecy are now widely understood.  But the principles and practices of secrecy policy as it has developed over the years remain obscure to many.  A new anthology published this week aims to present “the best that has been thought and written” on the subject.

“Government Secrecy: Classic and Contemporary Readings” presents an impressive cross-section of views, from many competing and complementary perspectives.  They include the theoretical (Georg Simmel), the sociological (Max Weber, Edward Shils), the adversarial (Howard Morland), and a lot more (from William Colby, Morton Halperin, Harold Relyea, Howard Zinn, James X. Dempsey, Thomas Blanton, William Weaver, Joseph Stiglitz, Lee Strickland, Herbert Foerstel, myself and others).

It is the distillation of an entire library’s worth of material that should be of interest to students of government and political science, as well as concerned citizens who find themselves confronting official secrecy.

“Government Secrecy” was edited Dr. Susan L. Maret of San Jose State University and Dr. Jan Goldman of the National Defense Intelligence College.

Access to OLC Opinions Still in Contention

Legal opinions issued by the Justice Department Office of Legal Counsel that interpret the law for the executive branch on questions of surveillance, detention and other disputed national security policies are among the Bush Administration records that are most urgently sought by members of Congress and others, and are often among the records that are most tightly withheld.

More than four years after it was first requested by Congress, the Justice Department last week finally delivered a copy of a 2001 opinion issued by the Office of Legal Counsel (OLC) on the “Legality of the Use of Military Commissions to Try Terrorists” (pdf) to the Senate Judiciary Committee.

Senator Patrick Leahy, chairman of the Committee, said the Justice Department had also promised to provide his Committee with six other OLC opinions related to terrorism, detention and interrogation policy, but then declined to do so, instead offering an opportunity for Committee staff to review the documents at the Justice Department.  He criticized the Department for “going back on its word.”

Senator Leahy had originally requested the 2001 OLC memorandum in a June 15, 2004 letter to then-White House counsel Alberto Gonzales.

The newly disclosed memorandum, which was always unclassified, is believed to have been “part of the deliberative process of the Executive Branch in connection with the establishment of military commissions,” according to John P. Elwood of the OLC.  He noted, in response (pdf) to a question from Sen. Russ Feingold, that “The conclusions of the memorandum have been affected by subsequent case law, most particularly the Supreme Court’s decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006).”

Attorney General Michael Mukasey said on December 3 that certain OLC opinions may be withheld from the Obama transition team until the new Administration takes office on January 20, either because the documents are privileged or because of their high classification level, the Washington Post reported on December 4.

“The Bush administration talks about working together, but they care more about continuing their secretive practices,” Senator Leahy said.  “Just as there is no justification for denying the incoming administration legal opinions that were the basis for Executive Branch policy, there is no justification for denying them to the Senate Judiciary Committee.”

“We will be working hard to have the Justice Department leadership team in place as soon as possible so we can begin to peel back the layers of secrecy that has defined this administration,” he said.

Executive Branch Reorganization, and More from CRS

Noteworthy publications from the Congressional Research Service that have not been made readily available online include the following (all pdf).

“Executive Branch Reorganization and Management Initiatives: A Brief Overview,” updated November 26, 2008.

“Islamist Militancy in the Pakistan-Afghanistan Border Region and U.S. Policy,” November 21, 2008 (new format, with map).

“Section 1206 of the National Defense Authorization Act for FY2006: A Fact Sheet on Department of Defense Authority to Train and Equip Foreign Military Forces,” updated November 25, 2008.

“Department of Defense ‘Section 1207′ Security and Stabilization Assistance: A Fact Sheet,” updated November 25, 2008.

“Water Infrastructure Needs and Investment: Review and Analysis of Key Issues,” updated November 24, 2008.

“Whales and Sonar: Environmental Exemptions for the Navy’s Mid-Frequency Active Sonar Training Program,” updated November 14, 2008.

“Afro-Latinos in Latin America and Considerations for U.S. Policy,” updated November 21, 2008.

“Party Leaders in the United States Congress, 1789-2009,” updated November 25, 2008.

“Containing Financial Crisis,” updated November 24, 2008.

“The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny,” updated November 18, 2008.

“Presidential Appointee Positions Requiring Senate Confirmation and Committees Handling Nominations,” updated March 18, 2008.

“Recess Appointments Made by President George W. Bush, January 20, 2001-October 31, 2008,” updated November 3, 2008.

“Nominations to Article III Lower Courts by President George W. Bush During the 110th Congress,” updated October 20, 2008.

“The Motion to Recommit in the House of Representatives: Effects, Recent Trends, and Options for Change,” November 20, 2008.

“Organic Agriculture in the United States: Program and Policy Issues,” updated November 25, 2008.

DoE Seeks to Limit “Public Interest” FOIA Disclosures

A proposed new Department of Energy regulation would eliminate the so-called “public interest” balancing test that encourages DOE officials to release information under the Freedom of Information Act even when it is legally exempt from disclosure if doing so would serve the public interest.

“This proposed rule would remove the so-called ‘extra balancing test’… which states: ‘To the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under [the FOIA] whenever it determines that such disclosure is in the public interest’,” according to the December 9 proposal published in the Federal Register.

“This additional [public interest balancing] test requires DOE to make available records that could be withheld under the FOIA exemptions, if DOE determines that disclosure would be in the public interest.  DOE is proposing to remove the extra balancing test, because it goes beyond the requirements of the FOIA, and imposes unnecessary administrative requirements on DOE.”

It is true, by definition, that the balancing test in the existing DOE regulation “goes beyond the requirements of the FOIA,” because it encourages disclosure of records the release of which is not legally required.

But in an apparent non-sequitur, DOE also said that “the extra balancing test does not alter the outcome of the decision to withhold information, as DOE already incorporates Department of Justice guidance in applying exemptions when determining whether or not to make a discretionary release of information.”

The difficulty with that statement is that current Department of Justice guidance on discretionary release does not require explicit consideration of the public interest in disclosure of exempt information.  To the contrary, it promotes withholding of exempt information and promises to defend agencies whenever they legally withhold such information.

In effect, the existing DOE regulation incorporates the 1993 FOIA policy enunciated by then-Attorney General Janet Reno (and long since abandoned by other agencies) which encouraged discretionary disclosures unless there was a “foreseeable harm” to a legitimate government interest.  And the proposed new DOE revision reflects the 2001 FOIA policy of Attorney General John Ashcroft, who discouraged discretionary releases (though he did not prohibit them) and urged withholding of records whenever there was a “sound legal basis” for doing so.  As noted in a November 19, 2001 Defense Department memo (pdf), under the Ashcroft FOIA policy “Discretionary disclosures are no longer encouraged.”

It is interesting to observe that with the current DOE FOIA regulation in effect there has been a striking difference in FOIA implementation between the Department of Energy and other agencies.

Earlier this year, for example, President Bush ordered executive branch agencies to provide comments on the recommendations of the Public Interest Declassification Board for improving declassification practices.  Requests under the Freedom of Information Act for copies of these comments were consistently rejected by the Office of the Director of National Intelligence, the Department of Defense, the Department of Homeland Security and other agencies.  These agencies correctly noted that the comments were inter-agency deliberative materials that were exempt from disclosure under FOIA exemption (b)(5).

But one agency released its comments in full, despite the availability of an exemption:  the Department of Energy. (See “Energy Dept is ‘Committed’ to Improving Declassification,” Secrecy News, June 5).  In other words, it appears that the public interest balancing test and the approach to FOIA that it represents do alter the outcome of the disclosure decision process at DOE.

In comments on the proposed regulation submitted by the Federation of American Scientists, we argued that “there is a widespread and well-founded expectation that the incoming Obama Administration will rescind the Ashcroft FOIA policy and define a more forthcoming disclosure policy.  In light of that probable scenario, I would urge DOE to cancel its proposed revision of [the public interest balancing test], or else to suspend action on it for six months while the new Administration prepares new government-wide FOIA guidance.”

JASON Study Debunks Gravitational Wave “Threat”

The elite JASON defense science advisory panel dismissed claims that high frequency gravitational waves (HFGW) could pose any kind of national security threat.

In a study (pdf) prepared for the Office of the Director of National Intelligence, the JASONs concluded that “No foreign threat in HFGW is credible, including: communication by means of HFGW; object detection or imaging (by HFGW radar or tomography); vehicle propulsion by HFGW; or any other practical use of HFGW.”

Gravitational waves were predicted by Einstein’s general theory of relativity and their existence has been indirectly confirmed by experiment.  But up to now they have never been directly measured.

“Unfortunately, relativity and gravitation theory have, over the last century, been the subject of a great deal of pseudo-science, in addition to real science. Therefore, in evaluating ambitious claims about gravitational applications, one must consider the possibility that the claims are misguided and wrong,” the JASONs advised.  “There is no substitute for seeking expert scientific and technical opinion in such matters.”

A copy of the new JASON report was obtained by Secrecy News.  See “High Frequency Gravitational Waves,” October 2008.

Update: Noah Shachtman has more here.

Sen. Feingold Urges “Concrete Steps” to Restore Rule of Law

In a December 10 letter to President-elect Obama, Sen. Russ Feingold urged the next Administration to take a series of specific measures to strengthen the rule of law.  Distilled from the record (pdf) of a September 16 Senate Judiciary Committee hearing on the subject, the recommendations addressed four topics in particular:  separation of powers, excessive government secrecy, detention and interrogation policy, and domestic surveillance.

The letter’s recommendations on combating excessive government secrecy included brief reference to a proposal stressed by the Federation of American Scientists for a fundamental review of agency classification guides to eliminate obsolete or unnecessary classification instructions.

Establishing such a review may be even more important than revising the executive order on classification or rescinding of the Ashcroft policy on FOIA, both desirable steps but which are only loosely coupled to daily secrecy decisions.  By comparison, revising agency classification guides — which specify what information shall be classified at what level — and updating them to eliminate spurious secrecy requirements would have immediate favorable consequences for agency practice, particularly since many classification guides have not been reviewed for years.  (See “Overcoming Overclassification,” Secrecy News, September 16, 2008.)

Border Searches of Laptops, and More from CRS

Noteworthy new and updated reports from the Congressional Research Service obtained by Secrecy News include the following.

“Iran’s Nuclear Program: Status,” updated November 20, 2008.

“Iran: Ethnic and Religious Minorities,” updated November 25, 2008.

“Iran: U.S. Concerns and Policy Responses,” updated November 24, 2008.

“Presidential Libraries: The Federal System and Related Legislation,” updated November 26, 2008.

“Nonmarital Childbearing: Trends, Reasons, and Public Policy Interventions,” November 20, 2008.

“Border Searches of Laptop Computers and Other Electronic Storage Devices,” updated November 17, 2008.

Support Secrecy News

Secrecy News is available for free to all interested readers, but it is not free to produce.  If you are deriving value from our reporting and from the access to publications that we provide, then please consider supporting this activity with a tax-deductible donation.

Donations may be made online here.  You may also send a check payable to the Federation of American Scientists, earmarked for Secrecy News, here:

Federation of American Scientists
Attn: Secrecy News
1725 DeSales Street NW, Suite 600
Washington, DC 20036

Federal, military and postal employees can make contributions to FAS by selecting #11539 in the Combined Federal Campaign’s national/international charity list.  To earmark such a contribution for Secrecy News, please notify us so that we may allocate it properly.